Executive Summary A. Need for the Regulatory Action

This regulatory action proposes to incorporate by reference into the NRC's regulations the latest revisions of three regulatory guides (RGs) (currently in draft form for comment). The three draft RGs identify new, revised, and reaffirmed code cases published by the American Society of Mechanical Engineers (ASME) that the NRC has determined are acceptable for use as voluntary alternatives to compliance with certain provisions of the ASME Boiler and Pressure Vessel Code (BPV Code) and the ASME Operation and Maintenance (OM) of Nuclear Power Plants, Division 1, OM Code: Section IST (OM Code) currently incorporated by reference into the NRC's regulations.

This regulatory action also proposes to revise the current NRC requirement for nuclear power plant licensees to update the codes of record for their inservice testing (IST) and inservice inspection (ISI) programs every 10 years, for licensees that are implementing the 2020 Edition, or later editions, of the ASME OM Code and the 2019 Edition, or later editions, of the ASME BPV Code, Section XI, as incorporated by reference in § 50.55a, “Codes and standards,” of title 10 of the Code of Federal Regulations (10 CFR). This proposed revision to the NRC's regulations follows Commission direction in staff requirements memorandum (SRM) SRM-SECY-21-0029 (dated November 8, 2021) in response to SECY-21-0029, “Rulemaking Plan on Revision of Inservice Testing and Inservice Inspection Program Update Frequencies Required in 10 CFR 50.55a,” dated March 15, 2021. This rule proposes additional changes to § 50.55a to promote clarity and consistency, including adding definitions of important terms and revising the reference to the 10-year service period in 10 CFR part 50, appendix J, “Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactors.” This rulemaking does not address all aspects of SRM-SECY-21-0029. Specifically, the NRC staff will consider options for streamlining ASME Code Case rulemakings in the future.

The NRC proposes to incorporate by reference into the NRC's regulations the following regulatory guides: RG 1.84, “Design, Fabrication, and Materials Code Case Acceptability, ASME Section III,” Revision 40 (Draft Regulatory Guide (DG)-1405); RG 1.147, “Inservice Inspection Code Case Acceptability, ASME Section XI, Division 1,” Revision 21 (DG-1406); and RG 1.192, “Operation and Maintenance [OM] Code Case Acceptability, ASME OM Code,” Revision 5 (DG-1407). This proposed action would allow nuclear power plant licensees and applicants for construction permits, operating licenses, combined licenses, standard design certifications, standard design approvals, and manufacturing licenses to use the code cases newly listed in these revised RGs as voluntary alternatives to ASME engineering standards for the construction, inservice inspections, and inservice testing of nuclear power plant components. The NRC also notes the availability of a proposed version of RG 1.193, “ASME Code Cases Not Approved for Use,” Revision 8 (DG-1408). This document lists code cases that the NRC has not approved for generic use and would not be incorporated by reference into the NRC's regulations.

The NRC prepared a draft regulatory analysis to determine the expected quantitative costs and benefits of this proposed rule, as well as qualitative factors to be considered in the NRC's rulemaking decision. The analysis concluded that this proposed rule would result in net savings to the industry and the NRC. As shown in Table 1, the estimated total net benefit relative to the regulatory baseline and the quantitative benefits would outweigh the costs by a range from approximately $34.3 million (7-percent net present value) to $40.5 million (3-percent net present value).

The draft regulatory analysis also considered the following qualitative considerations: (1) flexibility and decreased uncertainty for licensees when making modifications or preparing to perform inservice inspection or inservice testing; (while continuing to ensure safety; (2) consistency with the provisions of the National Technology Transfer and Advancement Act of 1995, which encourages Federal regulatory agencies to consider adopting voluntary consensus standards as an alternative to de novo agency development of standards affecting an industry; (3) consistency with the NRC's policy of evaluating the latest versions of consensus standards in terms of their suitability for endorsement by regulations and regulatory guides; and (4) consistency with the NRC's goal to harmonize with international standards to improve regulatory efficiency for both the NRC and international standards groups.

The draft regulatory analysis concludes that this proposed rule should be adopted because it is justified when integrating the cost-beneficial quantitative results and the positive and supporting nonquantitative considerations in the decision. For more information, please see the draft regulatory analysis as indicated in Section XVI, Availability of Documents, of this document.

Please refer to Docket ID NRC-2018-0291 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2018-0291.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to PDR.Resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents, by appointment, at the NRC's PDR, Room P1 B35, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8:00 a.m. and 4:00 p.m. eastern time (ET), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2018-0291 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

The ASME develops and publishes the ASME BPV Code, which contains requirements for the design, construction, and inservice inspection of nuclear power plant components, and the ASME OM Code, 1 which contains requirements for preservice and inservice testing of nuclear power plant components. In response to BPV and OM Code user requests, the ASME develops code cases that provide voluntary alternatives to BPV and OM Code requirements under special circumstances.

The NRC approves the ASME BPV and OM Codes in § 50.55a, “Codes and standards,” through the process of incorporation by reference. As such, each provision of the ASME Codes incorporated by reference into and mandated by § 50.55a constitutes a legally-binding NRC requirement imposed by rule. As noted previously, the ASME Code Cases, for the most part, represent alternative approaches for complying with provisions of the ASME BPV and OM Codes. Accordingly, the NRC periodically amends § 50.55a to incorporate by reference the NRC's RGs listing approved ASME Code Cases that may be used as voluntary alternatives to the BPV and OM Codes. 2

This proposed rule is the latest in a series of rules that incorporate by reference new versions of several RGs that identify new, revised, and reaffirmed  3 ASME Code Cases that the NRC unconditionally or conditionally approves for use. In developing these RGs, the NRC reviews the ASME BPV and OM Code Cases, determines the acceptability of each code case, and publishes its findings in the RGs. The RGs are revised periodically as new code cases are published by the ASME. The NRC incorporates by reference the RGs listing acceptable and conditionally acceptable ASME Code Cases into § 50.55a. The NRC published a final rule dated March 3, 2022 (87 FR 11934), that incorporated by reference into § 50.55a the most recent versions of the RGs, which are RG 1.84, “Design, Fabrication, and Materials Code Case Acceptability, ASME Section III,” Revision 39; RG 1.147, “Inservice Inspection Code Case Acceptability, ASME Section XI, Division 1,” Revision 20; and RG 1.192, “Operation and Maintenance Code Case Acceptability, ASME OM Code,” Revision 4.

The NRC staff provided SECY-21-0029 to the Commission with a proposed rulemaking plan for revising the IST and ISI code of record update requirements in § 50.55a. The Commission issued SRM-SECY-21-0029, directing the staff to proceed with the proposed rulemaking plan. In SECY-22-0075, “Staff Requirements-SECY-21-0029 Inservice Testing and Inservice Inspection Program Rulemakings Update,” dated August 10, 2022, the staff described deviations it was taking from the original plan in response to new information and changed circumstances that affected the implementation of SRM-SECY-21-0029. These changes included combining the two proposed rulemakings (the ASME code case and the IST and ISI code of record update requirements). These changes also included making conforming and clarifying changes to address issues encountered during the development of this proposed rule. One such change was the addition of a definition section to the proposed rule (§ 50.55a(y)) where “code of record interval” (the period of time between the code of record updates required by § 50.55a(f)(4) and (g)(4) for the IST and ISI programs, respectively) was differentiated from both the ISI and IST intervals (the ASME interval described by the licensee's code of record).

In this proposed rule, along with incorporating by reference three regulatory guides on ASME Code Cases, the NRC is providing a proposed revision to § 50.55a for public comment in accordance with the Commission's direction in SRM-SECY-21-0029. This proposed rule would specify that licensees are required to update their IST and ISI codes of record every two consecutive IST intervals or ISI intervals, as defined in the proposed rule, provided the licensee implements the 2020 Edition, or later edition, of the ASME OM Code and the 2019 Edition, or later edition or addenda, of ASME BPV Code, Section XI, as incorporated by reference in § 50.55a, for their IST and ISI programs, respectively. With this revised requirement to update the code of record, the NRC does not intend that the code of record interval for an IST or ISI program would exceed 25 years, even if ASME extends the IST interval or the ISI interval beyond 12 years in the ASME OM Code or the ASME BPV Code, respectively. The proposed 25-year maximum code of record interval would allow the same code of record to be used for two consecutive ISI or IST intervals, each up to 12 years, plus the one-time 1-year extension for IST and ISI programs as specified in the ASME OM Code and ASME BPV Code, respectively. If future editions of the ASME OM Code or ASME BPV Code or future code cases extend the IST interval or ISI interval, respectively, beyond 12 years, the NRC would need to maintain the proposed 25-year maximum code of record interval.

In draft Revision 5 to RG 1.192, the NRC is proposing to conditionally accept ASME OM Code Case OMN-31, “Alternative to Allow Extension of ISTA-3120 Inservice Examination and Test Intervals From 10 Years to 12 Years,” as a voluntary alternative to the 10-year interval specified in the ASME OM Code for applicants and licensees implementing the 2020 Edition of the ASME OM Code or later editions as incorporated by reference in § 50.55a. In draft Revision 21 to RG 1.147, the NRC is proposing to conditionally accept ASME Code Case N-921, “Alternative 12-yr Inspection Interval Duration, Section XI, Division 1,” as a voluntary alternative to the 10-year interval specified in Section XI, IWA-2400 of the ASME BPV Code for applicants and licensees implementing the 2019 Edition of the ASME BPV Code or later editions as incorporated by reference in § 50.55a.

This proposed rule would incorporate by reference the latest revisions of the NRC's RGs that list the ASME BPV and OM Code Cases that the NRC finds to be acceptable, or acceptable with NRC-specified conditions (“conditionally acceptable”). RG 1.84, Revision 40 (DG-1405) would supersede the incorporation by reference of Revision 39; RG 1.147, Revision 21 (DG-1406) would supersede the incorporation by reference of Revision 20; and RG 1.192, Revision 5 (DG-1407) would supersede the incorporation by reference of Revision 4.

The ASME Code Cases that are the subject of this proposed rule are the new and revised Section III and Section XI Code Cases as listed in Supplements 2 through 7 to the 2019 Edition of the ASME BPV Code, Supplements 0 through 2 and selected Code Cases from Supplement 3 to the 2021 Edition of the ASME BPV Code, and the OM Code Cases listed in the 2022 Edition of the ASME OM Code. By letter dated December 22, 2021, ASME requested that the NRC consider including Code Cases N-663-1, N-885-1, and N-921 in this proposed rulemaking. In response, the NRC included these three code cases within the scope of this proposed rule. The NRC is also proposing to include OMN-31 within the scope of this proposed rule to provide consistency between the ISI and IST programs.

The ASME publishes code cases that provide alternatives to existing code requirements that the ASME developed and approved. This proposed rule would incorporate by reference the most recent revisions of RGs 1.84, 1.147, and 1.192, which allow nuclear power plant licensees, and applicants for combined licenses, standard design certifications, standard design approvals, and manufacturing licenses under the regulations that govern license certifications, to use the code cases listed in these RGs as suitable alternatives to the ASME BPV and OM Codes for the construction, inservice inspections, and inservice testing of nuclear power plant components. The ASME makes the issued OM Code Cases available on the OM Code website and provides an index listing the issued OM Code Cases and their applicability in each ASME OM Code edition. In contrast, the ASME publishes BPV Code Cases in a separate document and at a different time than the ASME BPV Code Editions. This proposed rule identifies the BPV Code Cases by the edition of the ASME BPV Code under which they were published by the ASME and the OM Code Cases by the most recent edition of the ASME OM Code to which they apply.

The following general guidance applies to the use of the ASME Code Cases approved in the latest versions of the RGs that are incorporated by reference into § 50.55a as part of this proposed rule. Specifically, the use of the Code Cases listed in the latest versions of RGs 1.84, 1.147, and 1.192 are acceptable with the specified conditions when implementing the editions and addenda of the ASME BPV and OM Codes incorporated by reference in § 50.55a.

The approval of a code case in these RGs constitutes acceptance of its technical position for applications that are not precluded by other requirements. The applicant or licensee is responsible for ensuring that use of the code case does not conflict with regulatory requirements or licensee commitments. The code cases listed in the RGs are acceptable for use within the limits specified in the code cases. If the RG states an NRC condition on the use of a code case, then the NRC condition supplements and does not supersede any condition(s) specified in the code case, unless otherwise stated in the NRC condition.

The ASME Code Cases may be revised for many reasons ( e.g., to incorporate operational examination and testing experience and to update material requirements based on research results). On occasion, an inaccuracy in an equation is discovered or an examination, as practiced, is found not to be adequate to detect a newly discovered degradation mechanism. Therefore, when an applicant or a licensee initially implements a code case, § 50.55a requires that the applicant or the licensee implement the most recent version of that code case, as listed in the RGs incorporated by reference. Code cases superseded by revision are no longer acceptable for new applications unless otherwise indicated.

Section III of the ASME BPV Code applies to new construction ( e.g., the edition and addenda to be used in the construction of a plant are selected based on the date of the construction permit and are not changed thereafter, except voluntarily by the applicant or the licensee). Section III may also be used for repair and replacement activities under the provisions of Section XI of the ASME BPV Code. Whether used for construction or later repair or replacement, when a code case is first implemented by a licensee, the applicant implements the latest edition incorporated by reference into § 50.55a. Thereafter, the applicant or licensee may continue to apply the previous version of the code case or may apply the later version of the code case, including any NRC-specified conditions placed on its use, as an update to its code of record for the component.

Licensees that were using a code case prior to the effective date of its revision may continue to use the previous version until the next update to the code of record for the ISI or IST program, as applicable. This relieves licensees of the burden of having to update their ISI or IST program each time a code case is revised by the ASME and approved for use by the NRC. Code cases apply to specific editions and addenda, and code cases may be revised if they are no longer accurate or adequate, so licensees choosing to continue using a code case into a later code of record interval ( e.g., after updating the edition and addenda) for the ISI or IST program must implement the latest version incorporated by reference into § 50.55a and listed in the RGs.

The ASME may annul code cases that are no longer required, are determined to be inaccurate or inadequate, or have been incorporated into the BPV or OM Codes. A code case may be revised, for example, to incorporate user experience. The older or superseded version of the code case cannot be applied by the licensee or applicant for a first use of that code case. If an applicant or a licensee applied a code case before it was listed as superseded or annulled, the applicant or the licensee may continue to use the code case until the applicant or the licensee updates its construction code of record (in the case of an applicant, updates its application) or until the licensee's code of record interval for the ISI or IST program expires, after which the continued use of the code case is prohibited unless NRC authorization is given under § 50.55a(z). If a code case is incorporated by reference into § 50.55a and later a revised version is issued by the ASME because experience has shown that the design analysis, construction method, examination method, or testing method is inadequate, the NRC will amend § 50.55a and the relevant RG to remove the approval of the superseded code case. Applicants and licensees should not begin to implement such superseded code cases in advance of the rulemaking. This proposed rulemaking includes minor editorial changes to § 50.55a(a) to align with the Office of the Federal Register's guidance on the incorporation by reference.

The code cases discussed in Table I are new, revised, or reaffirmed code cases in which the NRC is not proposing any conditions. The table identifies the draft regulatory guide listing the applicable code case that the NRC proposes to approve for use.

The NRC has determined that certain code cases, as issued by the ASME, are generally acceptable for use, but that the alternative requirements specified in those code cases must be supplemented in order to provide an acceptable level of quality and safety. Accordingly, the NRC proposes to impose conditions on the use of these code cases to modify, limit or clarify their requirements. The conditions would specify, for each applicable code case, the additional activities that must be performed, the limits on the activities specified in the code case, and/or the supplemental information needed to provide clarity. These ASME Code Cases, listed in Table II, are included in Table 2 of DG-1405 (RG 1.84), DG-1406 (RG 1.147), and DG-1407 (RG 1.192). This section provides the NRC's evaluation of the code cases and the reasons for the NRC's proposed conditions. Notations indicate the conditions duplicated from previous versions of the RG.

The NRC requests public comment on these code cases and the proposed conditions. It also should be noted that this section only addresses those code cases for which the NRC proposes to impose condition(s), which are listed in the RG for the first time.

The proposed conditions on Code Case N-71-21 are the same as the conditions on N-71-20 that were approved by the NRC in Revision 39 of RG 1.84. When the ASME revised N-71, the code case was not modified in a way that would make it possible for the NRC to remove the conditions. Therefore, the conditions would be retained in Revision 40 of RG 1.84.

Code Case N-570-3 would update references made to ANSI/AISC N690-1994 and ANSI/AISC N690-1994 (R2004) Supplement 2 with ANSI/AISC N690-18. A difference between ANSI/AISC N690-18 and ANSI/AISC N690-1994 (R2004) is that ANSI/AISC N690-18 allows the use of the Load and Resistance Factor Design (LRFD) method or the Allowable Strength Design (ASD) method, versus the allowable stress design method or plastic design method contained in the ANSI/AISC N690-1994 (R2004) edition. Code Case N-570-2 explicitly stated in paragraph 3.11 that the plastic design method in Part 2 of ANSI/AISC N690-1994 (R2004) shall not be used. It is the NRC's understanding that the alternative requirements of code case N-570-3 for design are also intended to be limited to the design for strength using the ASD method of ANSI/AISC N690-18, which is similar to the allowable stress design method used in N-570-2; however, the code case does not include such explicit qualifiers regarding the use of ANSI/AISC N690-18. The alternative requirements for design in Code Case N-570-3 would be limited to the design for strength using the ASD method of ANSI/AISC N690-18. To provide clarity, the NRC is proposing a condition: “This Code Case shall not be used with the Load and Resistance Factor Design method of ANSI/AISC N690-18.”

The condition on Code Case N-711-2 would be identical to the condition on N-711-1 that was approved by the NRC in Revision 20 of RG 1.147. When the ASME revised N-711, the code case was not modified in a way that would make it possible for the NRC to remove the condition. Therefore, the condition would be retained in Revision 21 of RG 1.147.

Code Case N-716 provides rules for alternative classification and examination requirements for piping welds and components. Revision 3 to Code Case N-716 would remove the provision for plants issued an operating license after January 1, 2012, to submit the application of this Code Case for regulatory approval. The NRC is cognizant of the committee's desire to eliminate the provision for newly constructed plants to submit first time applications of N-716 to the NRC. It was the Committee's intention to make this Code Case more generally applicable internationally. However, the NRC is of the opinion that the new designs may introduce additional variables, which in the absence of substantial operating experience with these new plants, may introduce uncertainty on the applicability of this Code Case to the new plants. Hence, the NRC has determined there is a need to review the initial proposals for new plants. The review would confirm the absence of new degradation mechanisms, evaluate with available operating experience, as well as the risk-related information for the new plants prior to the initial application of the Code Case to new plants. Therefore, the NRC is proposing a condition that this Code Case is not approved for use by plants issued an operating license or combined license after January 1, 2012. However, plants issued an operating license or combined license after January 1, 2012, may submit an alternative to use this Code Case in accordance with § 50.55a(z) for review and approval prior to implementation.

The NRC is proposing to revise the conditions on N-754-1 to remove reference to the NRC's safety evaluation for the topical report “Materials Reliability Program (MRP): Technical Basis for Preemptive Weld Overlays for Alloy 82/182 Butt Welds in PWRs” (MRP-169) and to clarify the examination requirements.

The first condition deals with the use of this Code Case on a pipe that implements NRC-approved leak-before-break (LBB) methodology. The application of the LBB concept to a pipe is that if a flaw is developed in a pipe with certain favorable material properties, the pipe will most likely leak first before it fails catastrophically. The existing leakage detection system in the nuclear plant will detect the leakage and alert the operator. The operator has sufficient time to shut down the plant safely to perform corrective actions. The NRC has approved LBB for certain Class 1 reactor coolant system piping in pressurized water reactor plants based on the plant-specific and piping-specific LBB analysis, which shows that the probability of the piping rupture is extremely low under conditions consistent with the design basis for the piping as required in General Design Criterion 4 of 10 CFR part 50, appendix A. The LBB methodology and analysis, including specific safety margins, are reviewed and approved via the license amendment process. The LBB implementation is documented in the plant final safety analysis report. When an optimized weld overlay is installed onto pipes that are approved for LBB, the licensee must verify that the safety margins specified in the original LBB analysis are still satisfied.

The second condition states that the preservice and inservice examinations of the overlaid pipe using this Code Case must be performed in accordance with § 50.55a(g)(6)(ii)(F). Paragraph 3(c) of N-754-2 states that—

In lieu of all other Preservice and Inservice inspection requirements, the examination requirements in accordance with N-770-2 (or later in accordance with [Paragraph] 5) shall be met. Alternately, the requirements of [subparagraphs] (1) through (3) below may be used to modify the provisions of N-770-2 (or later in accordance with [Paragraph] 5).

As stated, if the inspection of the overlaid pipe performed in accordance with N-770-2 cannot be met or performed, alternatives of Paragraphs 3(c)(1), 3(c)(2) and 3(c)(3) of N-754-2 could be used. The NRC identified the following issues regarding the statement in Paragraph 3(c):

• Paragraphs 3(c)(2) and 3(c)(3) of N-754-2 are related to the design and analysis, not the inspection of the overlaid pipe. Therefore, it is not clear how these two paragraphs can be used to modify the inspection provisions of N-770-5.

• The inspection provisions of Paragraph 3(c)(1) are allowed to be different from the provisions of Note 14, Preservice Inspection for Optimized Weld Overlays, and Note 18, Inservice Inspection of Optimized Weld Overlays, of Table 1 of N-770. The NRC notes that 10 CFR 50.55a(g)(6)(ii)(F) mandates the use of N-770, as conditioned, for the examination requirements for optimized weld overlays in dissimilar metal butt welds. Therefore, for regulatory clarity regarding preservice and inservice inspection requirements, the proposed condition is provided.

• Section 50.55a(g)(6)(ii)(F) mandates the implementation of N-770-5, rather than N-770-2

• Therefore, the NRC finds that this condition is needed to clarify the examination requirements in Paragraph 3 of N-754-2 and to ensure that N-770-5 is implemented as required by § 50.55a(g)(6)(ii)(F).

The proposed conditions on Code Case N-766-4 are identical to the conditions on N-766-3 that were approved by the NRC in the previous revision of RG 1.147. When the ASME revised N-766, the code case was not modified in a way that would make it possible for the NRC to remove the conditions. Therefore, the conditions would be retained in Revision 21 of RG 1.147.

The proposed conditions on Code Case N-847-1 are identical to the conditions on N-847 that were approved by the NRC in the previous revision of RG 1.147. When the ASME revised N-847, the code case was not modified in a way that would make it possible for the NRC to remove the conditions. Therefore, the conditions would be retained in Revision 21 of RG 1.147.

Code Case N-880-1 removes the size limitation in the Case by eliminating the NPS 2 size limit. The NRC does not agree with removing the small size limitation (NPS 2 and under). The NRC is proposing to continue to limit the scope of the code case to NPS 2 (DN 50) or smaller fittings because there is insufficient technical basis to expand the application to items larger than NPS 2 (DN 50). The only justification provided for this change was that it is an arbitrary limitation. However, the limitation to NPS 2 (DN 50) and under was based on the capacity of the reactor coolant makeup system being able to safely shutdown the plant if these fittings fail, and therefore, is not an arbitrary limitation.

Without a condition, approval of the code case would allow the use of these non-standard or specialized fittings in any Class 1, 2 and 3 systems, including the reactor coolant makeup system. Thus, the failure of these fittings, which lack operating experience to demonstrate their reliability, could also affect the reactor coolant makeup system's ability to provide sufficient makeup capacity. Therefore, the NRC is proposing a new condition to limit the use of Code Case N-880-1 to NPS 2 (DN 50) or smaller fittings.

Conditions 2 and 3 are identical to the conditions on N-880 that were approved by the NRC in previous revision of RG 1.147. When the ASME revised N-880, the code case was not modified in a way that would make it possible for the NRC to remove the conditions. Therefore, the conditions would be retained in Revision 21 of RG 1.147.

Code Case N-899 provides an alternative method for calculating the values of weld residual stress as a function of distance through the wall thickness for dissimilar metal butt welds in the reactor coolant pressure boundary. The NRC notes that Code Case N-899 may be used in conjunction with methodologies similar to those in Section XI, nonmandatory Appendix A, Article A-3000 to calculate the crack tip stress intensity factor, K I , for inside surface connected flaws in piping or vessel nozzle butt welds fabricated with UNS N06082, UNS W86182, UNS N06052, or UNS W86152 weld filler material.

In many cases, plants do not have information on the actual repairs performed to Alloy 82/182 butt welds. However, operating experience and records indicate that repairs were common, including some welds being repaired multiple times. Weld repairs generally cause the weld residual stress to become more severe. Given the uncertainty in whether a weld repair exists or not, the NRC staff has generally found that it is appropriate to assume that a repair is present for the purposes of flaw evaluation. Therefore, consistent with the established NRC position for the weld residual stress distribution analysis for the subject welds of this code case, the inside surface repair residual stress distributions of Code Case N-899 are acceptable for use provided all known and documented repairs are bounded by the 50-percent through wall repair assumed in the case. Based on this discussion, the NRC is proposing the condition that only the standard weld residual stress distributions with repairs included, Paragraphs -2331 and -2332, would be approved for use and only if they bound all known or documented repairs previously performed on the subject weld.

Similarly, the NRC also notes that when Paragraph -3000, Calculation of Residual Stress Using Finite Element Analysis, is applied as an option to use finite element analysis to calculate weld residual stress distributions, the weld residual stress analysis should incorporate a minimum of a 50 percent through-wall inside surface connected weld repair as part of the analysis. This is consistent with the NRC position on repairs and weld residual stress calculations stated in this discussion. If documentation of a repair is found or a previous repair is known, the weld residual stress analysis must be evaluated to determine if it is bounded by the 50-percent repair by modeling or flaw evaluation. The more conservative of either 50-percent repair assumption or the combination of all known previous repairs should be used in the development of the weld residual stress distribution. Therefore, the NRC is proposing a condition: when developing a plant-specific weld residual stress distribution, the finite element analysis calculation of the weld residual stress distribution must use the more bounding of either an assumed previous inside surface repair of 50 percent through-wall or the combination of all known or documented previous repairs.

Code Case N-906 provides flaw evaluation procedure for cast austenitic stainless steel piping and fittings adjacent to girth welds as alternatives to the methods in Nonmandatory Appendix C, C-4210 and C-6330. Paragraph 1(b) of Code Case N-906 states that the provisions of this Case shall be applied to operating temperatures of 500 °F to 625 °F (260 °C to 330 °C). The paragraph also states that, if a thermal transient below this range of temperatures occurs at the flaw location, the appropriate toughness, J i , at the minimum transient temperature shall be used along with the applied stresses at that minimum transient temperature. Accordingly, if a transient occurs below the specified temperature range, the code case requires that the flaw evaluation use the fracture toughness and applied stresses at the minimum transient temperature.

However, the limiting fracture toughness and relevant applied stress for the flaw under the transient may not be those at the minimum transient temperature. For example, Figure 32 of NUREG/CR-4513, Revision 2, “Estimation of Fracture Toughness of Cast Stainless Steels during Thermal Aging in LWR Systems,” shows that the fracture toughness of a cast austenitic stainless steel material at room temperature may be higher than that at an elevated temperature. Therefore, the NRC is proposing a condition to delete the reference to the minimum transient temperature that is associated with the appropriate fracture toughness and applied stresses for the flaw evaluation. The condition also clarifies that the flaw evaluation must use the fracture toughness and applied stresses that are limiting for the flaw.

Code Case N-921 increases the inservice inspection interval defined in Section XI, IWA-2400 from 10 years to 12 years. Section XI, IWA-2400 requires that licensees have an inservice inspection program that includes, for example, inspection plans, inservice inspection interval dates, and identification of code cases to be applied during the interval. While IWA-2400 requires that plants specify the edition or addenda of Section XI that will be applied during the interval, Section XI does not prescribe what constitutes an appropriate edition or addenda. In fact, IWA-2410 states that edition or addenda is “as required by the regulatory authority having jurisdiction at the plant site.” The regulation at § 50.55a(g)(4)(ii) provides the regulatory basis for licensees determining which edition or addenda to apply to inservice inspection programs for a successive interval. This regulation assumes a 10-year inservice inspection interval.

A licensee applying this code case is, therefore, required by § 50.55a(4)(g)(ii) to update the code of record every 10 years. The inservice inspection interval and the code of record update interval should be synchronized to promote order and predictability in licensee inservice inspection programs. As part of this rulemaking, the NRC also is updating § 50.55a to allow flexibility in how often the code of record is updated, provided that licensees update to the 2019 Edition of Section XI. The NRC, therefore, proposes to condition Code Case N-921 to require updating to the 2019 Edition of Section XI. This condition would ensure that the desired order and predictability in licensee inservice inspection programs is maintained.

For the same reasons explained for Section XI Code Case N-921, the NRC is restricting the use of OMN-31 to licensees implementing the ASME OM Code, 2020 Edition. As indicated in DG-1407/RG 1.192, this OM Code Case may be applied by licensees implementing the ASME OM Code, 2020 Edition through the latest edition of the ASME OM Code incorporated by reference in § 50.55a, contrary to the ASME OM Code Case Applicability Index, dated July 1, 2022.

No changes were made to the OM Code Cases listed in Table 2 of the proposed Revision 5 to RG 1.192 (with the exception of new Code Case OMN-31, discussed previously) from the versions that were listed in OM Code Cases listed in Table 2 of Revision 4 to RG 1.192. Therefore, the conditions on the OM Code Cases listed in Table 2 of the proposed Revision 5 to RG 1.192 (with the exception of new Code Case OMN-31) are identical to the conditions on those OM Code Cases that were approved by the NRC in Revision 4 of RG 1.192. The OM Code Cases listed in Table 2 of the proposed Revision 5 to RG 1.192 were re-affirmed by the ASME for the 2022 Edition of the OM Code with no change to those OM Code Cases. Therefore, the conditions on the OM Code Cases in Table 2 are retained in proposed Revision 5 of RG 1.192.

The ASME Code Cases that are currently issued by the ASME but not approved for generic use by the NRC are listed in RG 1.193, “ASME Code Cases not Approved for Use.” In addition to the ASME Code Cases that the NRC has found to be technically or programmatically unacceptable, RG 1.193 includes code cases on reactor designs for high-temperature gas-cooled reactors and liquid metal reactors, reactor designs not currently licensed by the NRC, and certain requirements in Section III, Division 2, for submerged spent fuel waste casks, that are not endorsed by the NRC. Regulatory Guide 1.193 complements RGs 1.84, 1.147, and 1.192. It should be noted that the NRC is not proposing to adopt any of the code cases listed in RG 1.193.

Nuclear power plant licensees maintain their IST and ISI programs, respectively, in accordance with the requirements of the ASME OM Code and ASME BPV Code, Section XI, as incorporated by reference in § 50.55a. The initial concept of a 10-year ISI interval first appeared in the 1970 Edition of the ASME BPV Code, Section XI, in paragraph IS-240. This 10-year interval (referred to as the ISI interval) is only related to ASME ISI requirements. There is a corresponding 10-year IST interval for the OM Code requirements.

Later, in a final rule published in February 1976 (41 FR 6256), the NRC revised § 50.55a to require IST code of record updates every 20 months and ISI code of record updates every 40 months. This requirement was (and still is) independent from the ISI and IST intervals defined by the respective codes. In the early years of the development of ISI and IST programmatic requirements, the NRC requirement to update the codes of record was not synchronized with the ASME concept of an IST or ISI interval. In January 1979 (44 FR 3719), the NRC proposed changes to § 50.55a to extend the 20- and 40-month update intervals to 120 months (10 years), in order to promote consistency with the 10-year interval in the ASME codes. The corresponding final rule was published in October 1979 (44 FR 57912).

Paragraph IWA-2420 of the 1989 Edition and later of ASME BPV Code, Section XI, requires that nuclear plant owners prepare inspection plans and schedules for each ISI interval. These plans should include a listing of all code cases to be applied during the ISI interval and alternatives authorized under § 50.55a(z). The proposed revision to § 50.55a in this rulemaking does not alter those requirements. In defining the inspection program, Paragraph IWA-2410 of ASME BPV Code, Section XI, states, “The Code Edition and Addenda for preservice inspection and for initial and successive inservice inspection intervals shall be as required by the regulatory authority having jurisdiction at the plant site.” Therefore, while ASME BPV Code, Section XI, requires plant owners to declare which edition of Section XI will be applied during each ISI interval, the code does not specify what constitutes an appropriate edition of Section XI.

Similarly, paragraph ISTA-3110, “Test and Examination Plans,” in the 2020 Edition of the ASME OM Code requires that nuclear plant owners prepare test plans for the preservice test period, initial IST intervals, and subsequent IST intervals. These plans should include a listing of all code cases to be applied during the IST interval, relief granted under § 50.55a(f), and alternatives authorized under § 50.55a(z). Paragraph ISTA-3110 requires in subparagraph (a) that each IST plan shall include “the edition and addenda of this Section that apply to the required tests and examinations.” Therefore, while the ASME OM Code requires nuclear power plant owners to declare which edition and addenda of the OM Code will be applied during each IST interval, the OM Code does not specify what constitutes an appropriate edition and addenda of the OM Code.

Thus, neither the ASME BPV Code, Section XI, nor the OM Code specify which edition to use. Rather, the NRC's regulations in § 50.55a determine the appropriate edition and addenda of the ASME BPV Code, Section XI, or the OM Code to be applied in each ISI or IST interval respectively. The changes proposed to these code of record requirements in this rulemaking are focused on that aspect alone.

The NRC does not intend the proposed extension of the update interval to affect the orderly implementation of IST and ISI programs. Therefore, the proposed rule is designed to synchronize the requirements of ASME Codes and § 50.55a as much as possible. For licensees with codes of record prior to ASME BPV Code, Section XI, 2019 Edition, and OM Code, 2020 Edition, as incorporated by reference in § 50.55a, the proposed rule specifies that the code of record interval for the ISI and IST programs shall be the same as the ISI interval or IST interval. This is consistent with the current requirements. For licensees with codes of record of ASME BPV Code, Section XI, 2019 Edition, or later editions and addenda, and ASME OM Code, 2020 Edition, or later editions, as incorporated by reference in § 50.55a, the proposed rule specifies that the code of record interval for the ISI and IST programs shall be updated every two consecutive ISI intervals or IST intervals, respectively.

With this revised requirement to update the code of record, the NRC does not intend that the code of record interval for an IST or ISI program will exceed 25 years, even if ASME extends the IST interval or the ISI interval beyond 12 years in the ASME OM Code or the ASME BPV Code, respectively. The 25-year maximum code of record interval allows the same code of record to be used for two consecutive ISI or IST intervals, each up to 12 years, plus the one-time, 1-year extension for IST and ISI programs as specified in the ASME OM Code and ASME BPV Code, respectively. The Commission has not approved extending the code of record intervals beyond the 25-year maximum proposed in this rulemaking. If future editions of the ASME OM Code or ASME BPV Code or future code cases extend the IST interval or ISI interval, respectively, beyond 12 years, the NRC would need to maintain the proposed 25-year maximum code of record interval.

The concept of a 120-month interval is referenced repeatedly in § 50.55a. However, the current language is not consistent or well-defined. As such, the NRC proposes to clarify the language by introducing certain definitions in § 50.55a(y). The proposed definitions include code of record, code of record interval, inservice examination and test interval, inservice inspection program, inservice testing program, and inspection interval. The NRC also proposes to update the language throughout § 50.55a to be consistent with the proposed definitions.

With respect to relief from impractical IST requirements as requested in accordance with § 50.55a(f)(5)(iv), the NRC proposes that the duration of the granted relief be changed from the “120-month interval of operation” to the standardized definitions of the Inservice Examination and Test Interval. At the end of the Inservice Examination and Test Interval, the licensee would reassess whether the IST requirement continues to be impractical and submit an updated relief request as necessary. The NRC is proposing similar revisions for the ISI requirements in § 50.55a(g)(5)(iii) and (iv).

With respect to alternative requests in accordance with § 50.55a(z), the NRC will address the duration of each new authorized alternative in the safety evaluation describing its review of the request consistent with the current procedures for evaluating alternative requests. Existing NRC-approved alternatives were approved based on the IST or ISI interval. The proposed rulemaking language regarding the code of record interval does not extend the approval timeframe for these existing alternatives. Licensees seeking to extend the timeframe of approved alternatives therefore would need to submit an alternative request per § 50.55a(z) to continue using previously granted alternatives in a subsequent IST or ISI interval in the same code of record update interval. Licensees may request future alternatives based upon the code of record interval.

In addition, the NRC proposes to update references to the 10-year service period in appendix J to 10 CFR part 50 to be consistent with the definitions in the proposed § 50.55a(y), in which the NRC proposes to allow the ISI period to be extended to 12 years. The current rules for Type A tests under Option A (prescriptive requirements) explicitly reference the 10-year service period required in § 50.55a for inservice inspections. Consistent with the NRC's stated goal of maintaining consistency across all NRC rules regarding ISI and IST programs, the NRC is proposing revisions to appendix J to 10 CFR part 50 to directly reference the interval defined in a revised 10 CFR 50.55a, to accommodate a 12-year ISI interval. For the reasons stated in SECY-22-0075, the NRC proposes to make this revision without changing the intent or basis for the Type A test requirement in appendix J to 10 CFR part 50.

Licensees are currently required to submit various documents, such as IST plans and schedules or Section XI flaw evaluations, to the NRC each IST or ISI interval. The language proposed in this rulemaking regarding the code of record intervals does not alter those submittal requirements in any way. Therefore, licensees should carefully distinguish requirements that apply to the code of record interval from those that apply to the IST or ISI interval. For example, § 50.55a(f)(7) requires IST plans to be submitted within 90 days of their implementation for the applicable 120-month IST program interval. This proposed rule would revise the terms used in paragraph (f)(7) for consistency with the new definitions, but submittal of IST plans would still be required within 90 days of their implementation for the applicable IST interval.

The NRC is seeking advice and recommendations from the public on the proposed rule. We are particularly interested in comments and supporting rationale from the public on the following:

• The NRC proposes to add § 50.55a(y) to include definitions of certain terms that may be important for delineating requirements related to IST and ISI programs. Are the proposed definitions appropriate for their intended purpose? Should the NRC consider defining other terms related to IST and ISI? Please provide the basis for your response.

• The NRC proposes to revise § 50.55a(b)(5)(ii) and (iii) to relate those requirements regarding superseded and annulled code cases to the code of record interval, as defined in § 50.55a(y) of the proposed rule. Should the NRC instead consider relating those requirements to the ISI and IST interval? Please provide the basis for your response.

The following paragraphs in § 50.55a would be revised as follows:

This proposed rule would revise the introductory text to paragraph (a) by removing “standards” and adding in its place “materials” or “all approved materials”, as applicable, thereby aligning with the latest guidance on incorporation by reference.

This proposed rule would revise the reference to “NRC Regulatory Guide 1.84, Revision 39,” by removing “Revision 39” and adding in its place “Revision 40” and changing the month and year for the document's revision date.

This proposed rule would revise the reference to “NRC Regulatory Guide 1.147, Revision 20” by removing “Revision 20” and adding in its place “Revision 21” and changing the month and year for the document's revision date.

This proposed rule would revise the reference to “NRC Regulatory Guide 1.192, Revision 4” by removing “Revision 4” and adding in its place “Revision 5” and changing the month and year for the document's revision date.

This proposed rule would amend paragraph (b)(5)(ii) by replacing the text “120-month interval” with the text “code of record interval” and “120-month ISI program intervals” with the text “code of record intervals.”

This proposed rule would amend paragraph (b)(5)(iii) by replacing the text “120-month interval” with the text “code of record interval.”

This proposed rule would amend paragraph (b)(6)(ii) by replacing the text “120-month interval” with the text “code of record interval” and “120-month ISI program” with the text “code of record.”

This proposed rule would amend paragraph (b)(6)(iii) by replacing the text “120-month interval” with the text “code of record interval.”

This proposed rule would revise the heading and text of paragraph (f)(4)(i) to replace the text “120-month” with the text “code of record.” This proposed rule also would insert the text “no more than” to clarify that licensees may consider ASME OM Code editions incorporated by reference less than 18 months before the date of issuance of the operating license or before the date of initial fuel load.

This proposed rule would revise the heading and text of paragraph (f)(4)(ii) to replace the text “120-month” with the text “code of record.” This proposed rule also would insert the text “no more than” to clarify that licensees may consider ASME OM Code editions incorporated by reference less than 18 months before the start of the code of record interval.

This proposed rule would amend paragraph (f)(5)(iv) by replacing the text “120-month interval of operation” with the text “inservice examination and test interval.”

This proposed rule would amend paragraph (f)(7) by replacing the text “120-month IST Program interval” with the text “inservice examination and test interval.”

This proposed rule would amend paragraph (g)(4) introductory text by inserting the text “BPV” into the text “ASME Code Class 1, Class 2, and Class 3” to clarify the language.

This proposed rule would revise paragraph (g)(4)(i) to replace the text “120-month inspection” and “120-month ISI” with the text “code of record”; insert the text “BPV” into the text “ASME Code Class 1, Class 2, and Class 3” to clarify the language; and insert the text “no more than” to clarify that licensees may use ASME BPV Code, Section XI, editions incorporated by reference less than 18 months before the start of the code of record interval.

This proposed rule would revise paragraph (g)(4)(ii) to replace the text “120-month,” “120-month inspection,” and “120-month ISI” with “code of record”; insert the text “BPV” into the text “ASME Code Class 1, Class 2, and Class 3” to clarify the language; insert the text “no more than” to clarify that licensees may use ASME BPV Code, Section XI, editions incorporated by reference less than 18 months before the start of the code of record interval; remove outdated language; and delete the term “inservice” to ensure consistency with the definitions in the proposed § 50.55a(y).

This proposed rule would amend the heading for paragraph (g)(5)(i) by replacing the text “ISI Code editions and addenda” with the text “code of record.”

This proposed rule would amend paragraph (g)(5)(ii) by replacing the text “period” with the text “code of record interval.”

This proposed rule would amend paragraph (g)(5)(iii) by removing the text “120-month.” This proposed rule also would delete the term “inservice” to ensure consistency with the definitions in the proposed § 50.55a(y).

This proposed rule would amend paragraph (g)(5)(iv) by removing the text “120-month.”

This proposed rule would add paragraph (y) to provide definitions of important terms used in § 50.55a: Code of record, Code of record interval, Inservice examination and test interval, Inservice inspection program, Inservice examination and testing program, and Inspection interval.

This proposed rule would revise paragraph D.1.(a) in section III of option A to replace the text “10-year service period” with the text “inservice inspection interval, as defined in 10 CFR 50.55a(y),” and replace the text “10-year plant” with the text “final plant”. This proposed rule also would remove footnote 2 and redesignate footnote 3 as footnote 2.

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. This proposed rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (§ 2.810).

The NRC has prepared a draft regulatory analysis for this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the NRC. The NRC requests public comment on the draft regulatory analysis. The regulatory analysis is available as indicated in the “Availability of Documents” section of this document. Comments on the draft regulatory analysis may be submitted to the NRC as indicated under the ADDRESSES caption of this document.

The provisions in this proposed rule would allow licensees and applicants to voluntarily apply NRC-approved code cases, sometimes with NRC-specified conditions. The approved code cases are listed in three RGs that are proposed to be incorporated by reference into § 50.55a. An applicant's or a licensee's voluntary application of an approved code case does not constitute backfitting, because there is no imposition of a new requirement or new position.

Similarly, voluntary application of an approved code case by a 10 CFR part 52 applicant or licensee does not represent NRC imposition of a requirement or action, and therefore is not inconsistent with any issue finality provision in 10 CFR part 52. For these reasons, the NRC finds that this proposed rule does not involve any provisions requiring the preparation of a backfit analysis or documentation demonstrating that one or more of the issue finality criteria in 10 CFR part 52 are met.

Other circumstances where the NRC does not apply the Backfit Rule to the approval and requirement to use later code editions and addenda are as follows:

1. When the NRC takes exception to a later ASME BPV Code or OM Code provision but merely retains the current existing requirement, prohibits the use of the later code provision, limits the use of the later code provision, or supplements the provisions in a later code, the Backfit Rule does not apply because the NRC is not imposing new requirements. However, the NRC explains any such exceptions to the code in the preamble to and regulatory analysis for the rule.

2. When an NRC exception relaxes an existing ASME BPV Code or OM Code provision but does not prohibit a licensee from using the existing code provision, the Backfit Rule does not apply because the NRC is not imposing new requirements.

3. Modifications and limitations imposed during previous routine updates of § 50.55a have established a precedent for determining which modifications or limitations are backfits, or require a backfit analysis ( e.g., final rule dated September 10, 2008 (73 FR 52731), and a correction dated October 2, 2008 (73 FR 57235)). The application of the backfit requirements to modifications and limitations in the current rule are consistent with the application of backfit requirements to modifications and limitations in previous rules.

The incorporation by reference and adoption of a requirement mandating the use of a later ASME BPV Code or OM Code may constitute backfitting in some circumstances. In these cases, the NRC would perform a backfit analysis or prepare documented evaluation in accordance with § 50.109. These include the following:

1. When the NRC endorses a later provision of the ASME BPV Code or OM Code that takes a substantially different direction from the existing requirements, the action is treated as a backfit ( e.g., 61 FR 41303; August 8, 1996).

2. When the NRC requires implementation of a later ASME BPV Code or OM Code provision on an expedited basis, the action is treated as a backfit. This applies when implementation is required sooner than it would be required if the NRC simply endorsed the Code without any expedited language ( e.g., 64 FR 51370; September 22, 1999).

3. When the NRC takes an exception to an ASME BPV Code or OM Code provision and imposes a requirement that is substantially different from the existing requirement as well as substantially different from the later Code ( e.g., 67 FR 60529; September 26, 2002).

Proposed revisions to the code of record intervals of Section XI of the ASME BPV Code and the ASME OM Code are related to the ISI and IST programs of operating reactors. However, the Backfit Rule generally does not apply to incorporation by reference of later editions and addenda of the ASME BPV Code (Section XI) and OM Code. As previously mentioned, the NRC's longstanding regulatory practice has been to incorporate later versions of the ASME Codes into § 50.55a. Under the current § 50.55a, licensees must revise their ISI and IST programs every 120 months to the latest edition and addenda of Section XI of the ASME BPV Code and the ASME OM Code incorporated by reference into § 50.55a 18 months before the start of a new 120-month ISI and IST interval. Thus, when the NRC approves and requires the use of a later version of the Code for ISI and IST, it is implementing this longstanding regulatory practice and requirement. The NRC is proposing to revise the requirement to update to the latest edition and addenda before the start of every other ISI and IST interval. This proposed revision would be a voluntary relaxation, and thus not a backfit, because licensees will continue to have the option to voluntarily update before the start of each ISI or IST interval under §§ 50.55a(f)(4)(iv) or (g)(4)(iv).

The NRC finds that the proposed incorporation by reference into § 50.55a of the three RGs containing the latest NRC-approved code cases and the proposed revision of § 50.55a to the identified ISI/IST interval conditions, does not constitute backfitting or represent an inconsistency with any issue finality provisions in 10 CFR part 52.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885). The NRC requests comment on this document with respect to the clarity and effectiveness of the language used.

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment, an environmental impact statement is not required.

The determination of this environmental assessment is that there will be no significant effect on the quality of the human environment from this action. Public stakeholders should note, however, that comments on any aspect of this environmental assessment may be submitted to the NRC as indicated under the ADDRESSES caption.

As voluntary alternatives to the ASME Code, NRC-approved code cases provide an equivalent level of safety. The IST and ISI code of record update frequency is changing the update frequency of a program. Therefore, the probability or consequences of accidents is not changed. There also are no significant, non-radiological impacts associated with this action because no changes would be made affecting nonradiological plant effluents and because no changes would be made in activities that would adversely affect the environment. The determination of this environmental assessment is that there would be no significant offsite impact to the public from this action.

This proposed rule contains new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). This proposed rule has been submitted to the Office of Management and Budget for review and approval of the information collection(s).

Type of submission, new or revision: Revision.

The title of the information collection: Domestic Licensing of Production and Utilization Facilities: Updates to Incorporation by Reference and Regulatory Guides.

The form number if applicable: Not applicable.

How often the collection is required or requested: On occasion.

Who will be required or asked to respond: Operating power reactor licensees and applicants for power reactors under construction.

An estimate of the number of annual responses: 1.32 (0.66 reporting and 0.66 recordkeeping).

The estimated number of annual respondents: 0.66.

An estimate of the total number of hours needed annually to comply with the information collection requirement or request: 158.6.

Abstract: This proposed rule is the latest in a series of rulemakings that incorporate by reference the latest versions of several RGs identifying new and revised unconditionally or conditionally acceptable ASME Code Cases that are approved for use.

The U.S. Nuclear Regulatory Commission is seeking public comment on the potential impact of the information collection(s) contained in this proposed rule and on the following issues:

1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility?

2. Is the estimate of the burden of the proposed information collection accurate?

3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?

4. How can the burden of the proposed information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?

A copy of the Office of Management and Budget (OMB) clearance package is available in ADAMS under Accession No. ML22243A007 or can obtained free of charge by contacting the NRC's Public Document reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resources@nrc.gov. You may obtain information and comment submissions related to the OMB clearance package by searching on https://www.regulations.gov under Docket ID NRC-2018-0291.

You may submit comments on any aspect of these proposed information collections, including suggestions for reducing the burden and on the above issues, by the following methods:

• Federal rulemaking website : Go to https://www.regulations.gov and search for Docket ID NRC-2018-0291.

• Mail comments to: FOIA, Library, and Information Collections Branch, Office of the Chief Information Officer, Mail Stop: T-6 A10M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 or to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0011), Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 20503; email: oira_submission@omb.eop.gov.

Submit comments by April 5, 2023. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this proposed rule, the NRC is continuing to use the ASME BPV and OM Code Cases, which are ASME-approved voluntary alternatives to compliance with various provisions of the ASME BPV and OM Codes. The NRC's approval of the ASME Code Cases is accomplished by amending the NRC's regulations to incorporate by reference the latest revisions of the following, which are the subject of this rulemaking, into § 50.55a: RG 1.84, Revision 40; RG 1.147, Revision 21; and RG 1.192, Revision 5. The RGs list the ASME Code Cases that the NRC has approved for use. The ASME Code Cases are national consensus standards as defined in the National Technology Transfer and Advancement Act of 1995 and OMB Circular A-119. The ASME Code Cases constitute voluntary consensus standards, in which all interested parties (including the NRC and licensees of nuclear power plants) participate. The NRC invites comment on the applicability and use of other standards.

The NRC proposes to incorporate by reference three NRC RGs that list new and revised the ASME Code Cases that the NRC has approved as voluntary alternatives to certain provisions of NRC-required editions and addenda of the ASME BPV Code and the ASME OM Code. The draft regulatory guides, DG-1405, DG-1406, and DG-1407, will correspond to final RG 1.84, Revision 40; RG 1.147, Revision 21; and RG 1.192, Revision 5, respectively.

• RG 1.84, “Design, Fabrication, and Materials Code Case Acceptability, ASME Section III,” Revision 40 (Draft Regulatory Guide (DG)-1405), would allow nuclear power plant licensees and applicants for construction permits, operating licenses, combined licenses, standard design certifications, standard design approvals, and manufacturing licenses to use the code cases newly listed in this revised RG as voluntary alternatives to ASME engineering standards for the construction of nuclear power plant components.

• RG 1.147, “Inservice Inspection Code Case Acceptability, ASME Section XI, Division 1,” Revision 21 (DG-1406), would allow nuclear power plant licensees and applicants for construction permits, operating licenses, combined licenses, standard design certifications, standard design approvals, and manufacturing licenses to use the code cases newly listed in this revised RG as voluntary alternatives to ASME engineering standards for the inservice inspection of nuclear power plant components.

• RG 1.192, “Operation and Maintenance [OM] Code Case Acceptability, ASME OM Code,” Revision 5 (DG-1407), action would allow nuclear power plant licensees and applicants for construction permits, operating licenses, combined licenses, standard design certifications, standard design approvals, and manufacturing licenses to use the code cases newly listed in this revised RG as voluntary alternatives to ASME engineering standards for the inservice examination and testing of nuclear power plant components.

The NRC is required by law to obtain approval for incorporation by reference from the Office of the Federal Register (OFR). The OFR's requirements for incorporation by reference are set forth in 1 CFR part 51. On November 7, 2014, the OFR adopted changes to its regulations governing incorporation by reference (79 FR 66267). The OFR regulations require an agency to include in a proposed rule a discussion of the ways that the materials the agency proposes to incorporate by reference are reasonably available to interested parties or how it worked to make those materials reasonably available to interested parties. The discussion in this section complies with the requirement for proposed rules as set forth in 1 CFR 51.5(a)(1).

The NRC considers “interested parties” to include all potential NRC stakeholders, not only the individuals and entities regulated or otherwise subject to the NRC's regulatory oversight. These NRC stakeholders are not a homogenous group, so the considerations for determining “reasonable availability” vary by class of interested parties. The NRC identified six classes of interested parties with regard to the material to be incorporated by reference in an NRC rule:

• Individuals and small entities regulated or otherwise subject to the NRC's regulatory oversight. This class includes applicants and potential applicants for licenses and other NRC regulatory approvals, and who are subject to the material to be incorporated by reference. In this context, “small entities” has the same meaning as set out in § 2.810.

• Large entities otherwise subject to the NRC's regulatory oversight. This class includes applicants and potential applicants for licenses and other NRC regulatory approvals, and who are subject to the material to be incorporated by reference. In this context, a “large entity” is one that does not qualify as a “small entity” under § 2.810.

• Non-governmental organizations with institutional interests in the matters regulated by the NRC.

• Other Federal agencies, States, local governmental bodies (within the meaning of § 2.315(c)).

• Federally recognized and State-recognized Indian tribes.

• Members of the general public ( i.e., individual, unaffiliated members of the public who are not regulated or otherwise subject to the NRC's regulatory oversight) who need access to the materials that the NRC proposes to incorporate by reference in order to participate in the rulemaking.

The three draft RGs that the NRC proposes to incorporate by reference in this proposed rule are available without cost and can be read online or downloaded online. The draft RGs can be viewed, by appointment, at the NRC Technical Library, which is located at Two White Flint North, 11545 Rockville Pike, Rockville, Maryland 20852; telephone: 301-415-7000; email: Library.Resource@nrc.gov.

Because the three draft regulatory guides, and eventually, the final regulatory guides, are available in various forms at no cost, the NRC determines that the three draft regulatory guides, DG-1405, DG-1406, and DG-1407, and final RG 1.84, Revision 40; RG 1.147, Revision 21; and RG 1.192, Revision 5, once approved by the OFR for incorporation by reference, are reasonably available to all interested parties.

The NRC will not be issuing guidance for this rulemaking.

The NRC may conduct a public meeting on the proposed rule for the purpose of describing the changes to the code of record update frequency and its impact on the ISI and IST programs. The staff will also answer questions from the public regarding this proposed rule.

The NRC will publish a notice of the location, time, and agenda of the meeting, if held, in the Federal Register , on Regulations.gov , and on the NRC's public meeting website within at least 10 calendar days before the meeting. Stakeholders should monitor the NRC's public meeting website for information about the public meeting at: https://www.nrc.gov/public-involve/public-meetings/index.cfm.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

The NRC proposes to incorporate by reference three NRC RGs, as set forth in Table IV, that list new and revised ASME Code Cases that the NRC is proposing to approve as voluntary alternatives to certain provisions of NRC-required editions and addenda of the ASME BPV Code and the ASME OM Code.

The ASME BPV Code Cases that the NRC is proposing to approve as alternatives to certain provisions of the ASME BPV Code, as set forth in Table V, are being made available by the ASME for read-only access during the public comment period on https://go.asme.org/NRC-ASME.

The ASME OM Code Cases that the NRC is proposing to approve as alternatives to certain provisions of the ASME OM Code, as set forth in Table V, are being made available for read-only access during the public comment period by the ASME on https://go.asme.org/NRC-ASME.

The ASME is making the code cases listed in Table V available for limited, read-only access at the request of the NRC. The NRC believes that stakeholders need to be able to read these code cases in order to provide meaningful comment on the three RGs (listed in Table IV) that the NRC is proposing to incorporate by reference into § 50.55a. It is the NRC's position that the listed code cases, as modified by any conditions contained in the three RGs and thus serving as alternatives to requirements in § 50.55a, would be legally-binding regulatory requirements. An applicant or licensee must comply with a listed code case and any conditions to be within the scope of the NRC's approval of the code case as a voluntary alternative for use. These requirements cannot be fully understood without knowledge of the code case to which the proposed condition applies, and to this end, the NRC has requested that the ASME provide limited, read-only access to the code cases in order to facilitate meaningful public comment.

Throughout the development of this rule, the NRC may post documents related to this rule, including public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2018-0291. In addition, the Federal rulemaking website allows members of the public to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) navigate to the docket folder (NRC- 2018-0291); (2) click the “Subscribe” link; and (3) enter an email address and click on the “Subscribe” link.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is proposing to amend 10 CFR part 50 as follows:

The revisions and additions read as follows:

I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2023-0028 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2023-0028.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to PDR.Resource@nrc.gov. The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in this document.

• NRC's PDR: You may examine and purchase copies of public documents, by appointment, at the NRC's PDR, Room P1 B35, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time (ET), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2023-0028 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comments into ADAMS.

The NRC is issuing for public comment a DG in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.

The DG, entitled “Sizing of Large Lead-Acid Storage Batteries,” is temporarily identified by its task number, DG-1418 (ADAMS Accession No. ML22307A132).

DG-1418 is proposed Revision 2 to RG 1.212 and it endorses, with some limitations and a clarification, IEEE Standard (Std.) 485-2020, and includes production and utilization facilities licensed under parts 50 and 52 of title 10 of the Code of Federal Regulations (10 CFR). The previous version of this RG endorsed, with certain clarifications, IEEE Std. 485-2010. In 2020, the IEEE revised IEEE Std. 485 to refine the methods for defining direct current (dc) load guidance and sizing large lead acid batteries to ensure consistent performance. The revised IEEE standard provides a succinct document for the sizing of batteries with informative annexes. The NRC staff determined that, based on the revised IEEE standard, a revision to this RG is needed to support applications for new reactor licenses, design certifications, and license amendments.

The staff is also issuing for public comment a draft regulatory analysis (ADAMS Accession No. ML22307A144). The staff developed a regulatory analysis to assess the value of issuing or revising a regulatory guide as well as alternative courses of action.

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Proposed Rules” section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

Issuance of DG-1418, if finalized, would not constitute backfitting as defined in 10 CFR 50.109, “Backfitting,” and as described in NRC Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests”; affect issue finality of any approval issued under 10 CFR part 52, “Licenses, Certificates, and Approvals for Nuclear Power Plants”; or constitute forward fitting as defined in MD 8.4, because, as explained in this DG, licensees would not be required to comply with the positions set forth in this DG.

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the National Airspace System (NAS) as necessary to preserve the safe and efficient flow of air traffic.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177.

Jet Routes are published in paragraph 2004, VOR Federal airways are published in paragraph 6010(a), and United States Area Navigation Routes (T-routes) are published in paragraph 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is planning to decommission the VOR portion of the Greene County, MS (GCV), VORTAC in October 2023. The Greene County VOR was one of the candidate VORs identified for discontinuance by the FAA's VOR MON program and listed in the final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082. Although the VOR portion of the Greene County VORTAC is planned for decommissioning, the co-located Tactical Air Navigation (TACAN) is being retained to provide navigational service for military operations and Distance Measuring Equipment (DME) service in support of current and future RNAV procedures.

The ATS routes affected by the Greene County VOR decommissioning are Jet Route J-590 and VOR Federal airways V-11 and V-70. The remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of J-590, V-11, or V-70 within the affected area. As such, the FAA proposes to remove J-590. The FAA also proposes to remove portions of V-11 and V-70, as the planned decommissioning of the Greene County VOR would create gaps in those airways.

To address the removal of Jet Route J-590, instrument flight rules (IFR) traffic could use adjacent Jet Routes J-2, J-37, J-50, and J-138 or receive air traffic control (ATC) radar vectors to fly through or around the affected area. Aircraft equipped with RNAV capabilities could also use RNAV routes Q-22, Q-24, and Q-56 or file point to point through the affected area using the fixes and waypoints (WP) that will remain in place.

To address impacts from the loss of portions of V-11 and V-70, IFR traffic could use adjacent VOR Federal airways V-114, V-222, and V-552, or receive ATC radar vectors to fly through or around the affected area. Aircraft equipped with RNAV capabilities could also use RNAV routes T-292 and T-406 or the new T-365 proposed to be established in this action, or file point to point through the affected area using the fixes and WPs that will remain in place. Visual flight rules (VFR) pilots who elect to navigate via the affected ATS routes could also take advantage of the adjacent ATS routes or ATC services listed previously.

In addition, the FAA proposes to establish a new RNAV route, T-365, to overlap the V-11 airway segments proposed to be removed. This new RNAV route would not only provide an additional mitigation to the proposed modification to V-11, but also support the FAA's NextGen efforts to modernize the NAS navigation system from ground-based to satellite-based.

The FAA is proposing an amendment to 14 CFR part 71 by removing Jet Route J-590, amending VOR Federal airways V-11 and V-70, and establishing RNAV route T-365 due to the planned decommissioning of the VOR portion of the Greene County, MS, VORTAC. The proposed ATS route actions are described below.

J-590: J-590 currently extends between the Lake Charles, LA, VORTAC and the Montgomery, AL, VORTAC. The FAA proposes to remove the Jet Route segment overlying the Greene County VORTAC between the Fighting Tiger, LA, VORTAC and the Montgomery VORTAC due to the Greene County VOR being decommissioned. Additionally, the FAA proposes to remove the Jet Route segment between the Lake Charles VORTAC and the Fighting Tiger VORTAC as it overlays the same Jet Route segment as J-2 and J-138, and RNAV route segment as Q-24. As a result, the Jet Route would be removed in its entirety.

V-11: V-11 currently extends between the Brookley, AL, VORTAC and the Magnolia, MS, VORTAC; and between the Cunningham, KY, VOR/Distance Measuring Equipment (VOR/DME) and the intersection of the Fort Wayne, IN, VORTAC 038° and Flag City, OH, VORTAC 308° radials (the EDGEE fix). The FAA proposes to remove the airway segment overlying the Greene County VORTAC between the Brookley VORTAC and the Magnolia VORTAC. As amended, the airway would extend between the Cunningham VOR/DME and the intersection of the Fort Wayne VORTAC 038° and Flag City VORTAC 308° radials (the EDGEE fix).

V-70: V-70 currently extends between the Monterrey, Mexico, VOR/DME and the Allendale, SC, VOR; and between the Grand Strand, SC, VORTAC and the Cofield, NC, VORTAC. The portions of V-70 within Mexico are excluded from this proposal. The FAA proposes to remove the airway segment overlying the Greene County VORTAC between the Picayune, MS, VOR/DME and the Monroeville, AL, VORTAC. As amended, the airway would extend between the Monterrey, Mexico, VOR/DME and the Picayune VOR/DME, between the Monroeville VORTAC and the Allendale VOR, and between the Grand Strand VORTAC and the Cofield VORTAC. If implemented as proposed, the portions of V-70 within Mexico would continue to be excluded.

T-365: T-365 is a new RNAV route that would extend between the Brookley, AL, VORTAC and the Magnolia, MS, VORTAC. This T-route would mitigate the loss of the V-11 airway segment proposed to be removed and provide RNAV routing capability from the Mobile, AL, area northwestward to the Jackson, MS, area.

All NAVAID radials in the VOR Federal airway descriptions below are unchanged and stated in degrees True north.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend Class E airspace in Shelbyville, TN. An airspace evaluation determined that this update is necessary to support IFR operations in the area.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (Docket No. FAA-2023-0189; Airspace Docket No. 23-ASO-02) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for the address and phone number). You may also submit comments through the internet at www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-0189; Airspace Docket No. 23-ASO-02.” The postcard will be dated/time-stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of the comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/ .

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except for federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except for federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. These updates would be published subsequently in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace extending upward from 700 feet above the surface for Bomar Field/Shelbyville Municipal Airport, Shelbyville, Tennessee, as an airspace evaluation determined an update for this airport necessary. This action would also update this airport's geographic coordinates, as well as the geographic coordinates of Ellington Airport. In addition, this action would remove the Shelbyville VOR/DME from the description, as it is not necessary to describe the airspace. Finally, the descriptor header would be updated by removing the city name from the from the airport's line. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would establish airspace in Culvert, KY, to support IFR operations in the area.

Interested parties are invited to participate on this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide a factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (Docket No. FAA-2023-0138; Airspace Docket No. 22-ASO-20) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for the address and phone number). You may also submit comments through the internet at www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2023-0138; Airspace Docket No. 22-ASO-20.” The postcard will be dated/time-stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this document may be change in light of the comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except on federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except for federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. These updates would subsequently be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to establish Class E airspace extending upward from 700 feet above the surface for Kentucky Dam State Park Airport, Calvert City, KY, to accommodate RNAV GPS standard instrument approach procedures (SIAPs) serving this airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the enroute structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System (NAS).

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177.

United States Area Navigation Routes (T-routes) are published in paragraph 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

In 2003, Congress enacted the Vision 100—Century of Aviation Reauthorization Act (Pub. L. 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen efforts to improve the safety and efficiency of the NAS as well as transition the NAS from a ground-based to a satellite-based Performance Based Navigation (PBN) system, the FAA is proposing to establish RNAV routes T-469 and T-472 to provide additional enroute structure within the NAS. This action would reduce air traffic control (ATC) sector workload and complexity, reduce pilot-to-controller communications, and increase NAS capacity and efficiency in the areas of the new RNAV T-routes.

Additionally, the proposed T-routes would provide Instrument Flight Rules (IFR) pilots that are equipped for RNAV additional Air Traffic Service (ATS) route options for navigating around areas of heavy aviation activity and limited or no radar coverage between the Paris, TX, area and the Page, OK, and the Hot Springs, AR, areas. Visual Flight Rules (VFR) pilots, equipped with RNAV capabilities, who elect to navigate via ATS routes, could also take advantage of the proposed T-469 and T-472.

The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV routes T-469 and T-472. The proposed new RNAV routes are described below.

T-469: T-469 is a new RNAV route that would extend between the TASEY, TX, waypoint (WP) located 60 feet west of the Paris, TX, Very High Frequency (VHF) Omnidirectional Range (VOR)/Distance Measuring Equipment (VOR/DME) navigational aid (NAVAID) and the Rich Mountain, OK, VOR/Tactical Air Navigation (VORTAC) NAVAID. This new T-route would provide RNAV routing along the same route of flight as VOR Federal airway V-315 and enhance flight safety and NAS efficiency for aircraft transiting enroute along the eastern boundary of the Rivers Military Operations Area (MOA).

T-472: T-472 is a new RNAV route that would extend between the TASEY, TX, WP located 60 feet west of the Paris, TX, VOR/DME NAVAID and the Hot Springs, AR, VOR/DME NAVAID. This new T-route would provide RNAV routing along the same route of flight as VOR Federal airway V-124 and enhance flight safety and NAS efficiency for aircraft transiting enroute along the southern boundary of the Hog B MOA.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace extending upward from 700 feet above the surface at Sandusky City Airport, Sandusky, MI, to support instrument flight rule operations at this airport.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it received on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or dely. The FAA may change this proposal in light of the comments it receives.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

Class E airspace is published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Sandusky City Airport, Sandusky, MI.

This action supports new public instrument procedures.

I. Table of Abbreviations BOEM Bureau of Ocean Energy Management CFR Code of Federal Regulations DD Degrees Decimal DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking OCS Outer Continental Shelf OSS Offshore Substation NAD 83 North American Datum of 1983 NM Nautical Mile § Section SFWF South Fork Wind Farm U.S.C. United States Code WTG Wind Turbine Generator II. Background, Purpose, and Legal Basis

On October 20, 2022, Orsted Offshore North America, an offshore wind farm developer, notified the Coast Guard that they plan to begin construction of facilities in the SFWF project area within federal waters on the OCS, specifically in the BOEM Renewable Energy Lease Area OCS-A 0517, approximately 16 NM southeast of Block Island, Rhode Island, and 30 NM east of Montauk Point, New York in May 2023.

The extremely complex offshore construction of these OCS facilities presents many unusually hazardous conditions including hydraulic pile driving hammer operations, heavy lift operations, overhead cutting operations, potential falling debris, increased vessel traffic, and stationary barges in close proximity to the facilities and each other.

Based on these circumstances, the First Coast Guard District Commander has determined that establishment of 13 safety zones through rulemaking is warranted to ensure the safety of life,

The current procedures and standards for adding Negotiated Service Agreements (NSAs) to the Competitive product list have been addressed substantially through separate orders issued by the Commission in various dockets since 2008. Streamlining and codifying the rules pertaining to Competitive NSAs will provide increased clarity concerning filing requirements and the review process. Codifying such procedures and standards also provides an opportunity to make improvements to the practices and precedents that have developed, while maintaining the opportunities for pricing flexibility that NSAs afford the Postal Service. Thus, the Commission seeks comments to facilitate the development of such rules.

The Commission has developed a conceptual framework (Framework) that could outline enhancements to its regime for adding NSAs to the Competitive product list. The core feature of the Framework is the creation of a three-track system to review NSAs proposed to be added to the Competitive product list. A proposed NSA would be filed in one of three tracks, and each track would have distinct filing and review procedures providing different levels of scrutiny and streamlined review. The tracks would consist of a Standard NSA track, a Custom NSA track, and a non-published rates (NPR) NSA track. The intent is to preserve the Postal Service's existing contracting flexibility in the Custom NSA track, while providing for streamlined pre-implementation review for contracts that satisfy the eligibility requirements of the NPR NSA track or the Standard NSA track.

The Framework provides new filing and review procedures for the Standard NSA track. These procedures would include pre-approving financial models to streamline review of individual NSAs that reflect only existing Postal Service offerings. By contrast, filing and review procedures for NPR NSAs would generally follow current practices. Filing and review procedures under the Custom NSA track would resemble current, generally applicable filing and review practices for non-NPR NSAs.

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

Section 110 of the Act requires states to develop air pollution regulations and control strategies to ensure that air quality meets the EPA's National Ambient Air Quality Standards (NAAQS). These ambient standards are established under section 109 of the Act and they currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. The state's air regulations are contained in its SIP, which is basically a clean air plan. Each state is responsible for developing SIPs to demonstrate how the NAAQS will be achieved, maintained, and enforced. The SIP must be submitted to the EPA for approval, and any changes a state makes to the approved SIP also must be submitted to the EPA for approval.

Section 110(a)(2)(C) of the CAA requires states to develop and submit to the EPA for approval into the SIP, preconstruction review and permitting programs applicable to certain new and modified stationary sources of air pollutants for attainment and nonattainment areas that cover both major and minor new sources and modifications, collectively referred to as the New Source Review (NSR) SIP. The CAA NSR SIP program is composed of three separate programs: Prevention of Significant Deterioration (PSD), Nonattainment New Source Review (NNSR), and Minor NSR. The EPA codified minimum requirements for these State permitting programs including public participation and notification requirements at 40 CFR 51.160 through 51.164. Requirements specific to construction of new stationary sources and major modifications in nonattainment areas are codified in 40 CFR 51.165 for the NNSR program. Requirements for permitting of new stationary sources and major modifications in attainment areas subject to PSD, including additional public participation requirements, are found at 40 CFR 51.166. As the EPA updates its implementing rules for NSR, states and localities similarly are required to update their SIP-approved rules to ensure consistency with the minimum Federal NSR permitting requirements.

On November 24, 2020, the EPA promulgated final revisions to the applicability regulations of the major NSR permit programs. A two-step applicability test is used in the PSD and NNSR programs to determine whether a proposed project will be subject to major NSR requirements. In Step 1 of the analysis, the applicant determines if the proposed project would result in a significant emissions increase of a regulated NSR pollutant. If there is a significant emissions increase, the applicant proceeds to Step 2 and determines if there is a significant net emissions increase. In the November 24, 2020, final rule, the EPA clarified that emissions increases and decreases associated with the proposed project could be used in Step 1 of the applicability test; this is known as project emissions accounting (PEA). The clarifications made to the PSD and NNSR programs are not required elements of the Federal program. States with SIP-approved PSD and NNSR programs that want to use PEA in PSD and NNSR applicability tests must either determine that the state is able to interpret the existing state rules such that PEA is already allowed, or the state must adopt and submit a revision to the SIP that is consistent with the PEA revisions.

On July 9, 2021, the TCEQ submitted revisions to the Texas SIP that update the Texas PSD and NNSR programs to allow for PEA consistent with the EPA's November 24, 2020, final rule at 85 FR 74890. The July 9, 2021, submittal also included the repeal of obsolete provisions from the Texas permitting program.

The accompanying Technical Support Document for this action includes a detailed analysis of the submitted revisions to the Texas SIP which are the subject of this proposed rulemaking. Our analysis indicates that the July 9, 2021, SIP revision was developed in accordance with the CAA and the State provided reasonable notice and public hearing.

The TCEQ submitted revisions to the definition of “Project emissions increase” at 30 TAC Section 116.12(32) to implement the PEA. The revisions are consistent with the EPA's November 24, 2020, final rule at 85 FR 74890. As stated above, the EPA's implementing regulations for NSR establish a two-step process for determining major NSR applicability for projects at stationary sources. Under Step 1 of the applicability determination, the project itself is analyzed to determine if there is a significant emissions increase of the project. In our November 24, 2020, final rule the EPA clarified that this Step 1 analysis may consider the increases and decreases associated with the project. If the Step 1 analysis determines there is a significant emissions increase, then the applicant proceeds to Step 2 of the applicability determination whereby the applicant must perform contemporaneous netting and account for the project emission increases and the emission increases and decreases attributable to other projects at the stationary source within the contemporaneous window to determine if there is a significant net emissions increase. The effect of the revisions to the Texas definition is that for purposes of determining whether a source or modification is major for PSD or NNSR permitting, the Step 1 analysis of the project itself will include increases and decreases associated with the project to determine if the project results in a “significant emissions increase”, as required under 30 TAC Section 116.12(32)(D). If there is an increase, the second step of the applicability process is to determine if there is a “significant net emissions increase”. Step 2 of the applicability determination is unchanged by the submitted SIP revision.

The submitted revisions to 30 TAC Section 116.150(c)(1) and (c)(2) are necessary to maintain consistency with the EPA's final rule on November 24, 2020, to show that project emissions increase will include project related increases and decreases. These revisions work in connection with the revised definition of “project emissions increase” at 30 TAC Section 116.12(32). The TCEQ also submitted non-substantive edits to 30 TAC Section 116.150(a), (b), and (c) to correct non-substantive, grammar-related provisions.

The submitted revisions to 30 TAC Section 116.151(b) are necessary to maintain consistency with the EPA's final rule on November 24, 2020, to show that project emissions increase will include project related increases and decreases. These revisions work in connection with the revised definition of “project emissions increase” at 30 TAC Section 116.12(32).

The submitted revisions to 30 TAC Section 116.160(b)(1) and (b)(2) are necessary to maintain consistency with the EPA's final rule on November 24, 2020, to show that project emissions increase will include project related increases and decreases. These revisions work in connection with the revised definition of “project emissions increase” at 30 TAC Section 116.12(32).

Pursuant to section 110 of the Act, we are proposing to approve the submitted revisions to the Texas SIP that update the PSD and NNSR permitting requirements to maintain consistency with the Federal NSR program requirements by adopting the provisions for PEA and repeal obsolete requirements. Our analysis found that the submitted revisions are consistent with the CAA and the EPA's regulations, policy and guidance for permitting SIP requirements. The EPA is proposing approval of the following revisions adopted on June 9, 2021, effective on July 1, 2021, submitted to the EPA on July 9, 2021:

• Revisions to 30 TAC Section 116.12—Nonattainment and Prevention of Significant Deterioration Review Definitions,

• Revisions to 30 TAC Section 116.150—New Major Source or Major Modification in Ozone Nonattainment Areas,

• Revisions to 30 TAC Section 116.151—New Major Source or Major Modification in Nonattainment Area Other than Ozone, and

• Revisions to 30 TAC Section 116.160—Prevention of Significant Deterioration.

The EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within Texas. 1 The EPA then compared the data to the national average for each of the demographic groups. The results of this analysis are being provided for informational and transparency purposes. The results of the demographic analysis indicate that, for populations within Texas, the percent people of color (persons who reported their race as a category other than White alone (not Hispanic or Latino)) is less than the national average (40.3 percent versus 59.3 percent). Within people of color, the percent of the population that is Black or African American alone is lower than the national average (13.2 percent versus 13.4 percent) and the percent of the population that is American Indian/Alaska Native is lower than the national average (1.1 percent versus 1.3 percent). The percent of the population that is Hispanic or Latino is significantly higher than the national average (40.2 percent versus 18.9 percent). The percent of the population that is two or more races is lower than the national averages (2.2 percent versus 2.9 percent). The percent of persons in poverty in Texas is higher than the national average (14.2 percent versus 11.6 percent). The percent of persons aged 25 years and older with a high school diploma in Texas is slightly lower than the national average (84.4 percent versus 88.5 percent), and the percent with a Bachelor's degree or higher is below the national average (30.7 percent versus 32.9 percent).

This action proposes to approve revisions to the Texas PSD and NNSR programs, consistent with the Federal permitting programs. Final approval of these revisions to the Texas permit programs will continue to enable the State of Texas to implement control strategies and permitting programs. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.

In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to the Texas regulations as described in Section III of this preamble, Proposed Action. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA performed an environmental justice analysis, as is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. In addition, there is no information in the record upon which this decision is based inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

Section 110 of the Act requires states to develop air pollution regulations and control strategies to ensure that air quality meets the EPA's National Ambient Air Quality Standards (NAAQS). These ambient standards are established under section 109 of the Act and they currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. The state's air regulations are contained in its SIP, which is basically a clean air plan. Each state is responsible for developing SIPs to demonstrate how the NAAQS will be achieved, maintained, and enforced. The SIP must be submitted to the EPA for approval, and any changes a state makes to the approved SIP also must be submitted to the EPA for approval.

On December 17, 2021, Mr. Kenneth Wagner, Secretary of Energy and Environment, submitted revisions to the Oklahoma SIP that included the annual SIP updates for 2021. The submittal included revisions to OAC 252:100, Subchapter 2 and Appendix Q to update the incorporation by reference of Federal requirements, which will be addressed in this proposal.

On January 30, 2023, Mr. Ken McQueen, Secretary of Energy and Environment, submitted revisions to the Oklahoma SIP that included the annual SIP updates for 2022. This submittal included revisions to OAC 252:100, Subchapter 2 and Appendix Q to update the incorporation by reference of Federal requirements, which will be addressed in this proposal. The submittal also included revisions to OAC 252:100, Subchapters 8, 37 and 39 which will be addressed by EPA at a later date and in separate rulemakings.

The accompanying Technical Support Document for this action includes a detailed analysis of the submitted revisions to the Oklahoma SIP which are the subject of this proposed rulemaking. Our analysis indicates that the December 17, 2021 and January 30, 2023, SIP revisions addressed in this proposed rulemaking action were developed in accordance with the CAA and the State provided reasonable notice and public hearing.

The ODEQ submitted revisions on December 17, 2021 and January 30, 2023, to update the Incorporation by Reference provisions found in the Oklahoma SIP. In the December 17, 2021, submittal the ODEQ provided amendments to OAC 252:100-2-3 and Appendix Q that were adopted on June 11, 2021, and effective September 15, 2021. The January 30, 2023, submittal included amendments to OAC 252:100-2-3 and Appendix Q that were adopted on June 21, 2022, and effective September 15, 2022. These revisions ensure the Oklahoma SIP maintains consistency with current Federal requirements by updating the opening paragraph of OAC 252:100-2-3 to include the current incorporation by reference date and revoking and replacing the prior version of Appendix Q. Specifically, the ODEQ updated the incorporation by reference requirements of:

• 40 CFR part 50, appendices B and J, to ensure the Oklahoma SIP uses the current Federal reference methods for determining compliance with the NAAQS,

• 40 CFR part 51, subpart A, table 1 to appendix A to use current requirements in the Oklahoma emission inventory reporting requirements,

• 40 CFR part 51, paragraph 51.100(s)(1) of subpart F, to use the Federal definition of volatile organic compound,

• 40 CFR part 51, appendix P, to use Federal emission monitoring requirements,

• 40 CFR part 51, appendix W, to use current Federal guidance on air quality models, and

• 40 CFR part 98, table A-1 of subpart A, to use current global warming potentials in the Oklahoma air permitting programs.

Following the U.S. Supreme Court decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested approval under Section 10211(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, Public Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (“SAFETEA”), to administer in certain areas of Indian country (as defined at 18 U.S.C. 1151) the State's environmental regulatory programs that were previously approved by the EPA for areas outside of Indian country. The State's request excluded certain areas of Indian country further described below. In addition, the State only sought approval to the extent that such approval is necessary for the State to administer a program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014). 1

On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to administer all the State's EPA-approved environmental regulatory programs, including the Oklahoma SIP, in the requested areas of Indian country. As requested by Oklahoma, the EPA's approval under SAFETEA does not include Indian country lands, including rights-of-way running through the same, that: (1) qualify as Indian allotments, the Indian titles to which have not been extinguished, under 18 U.S.C. 1151(c); (2) are held in trust by the United States on behalf of an individual Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) acquired that fee title to such land, or an area that included such land, in accordance with a treaty with the United States to which such Tribe was a party, and (b) never allotted the land to a member or citizen of the Tribe (collectively “excluded Indian country lands”).

The EPA's approval under SAFETEA expressly provided that to the extent EPA's prior approvals of Oklahoma's environmental programs excluded Indian country, any such exclusions are superseded for the geographic areas of Indian country covered by the EPA's approval of Oklahoma's SAFETEA request. 2 The approval also provided that future revisions or amendments to Oklahoma's approved environmental regulatory programs would extend to the covered areas of Indian country (without any further need for additional requests under SAFETEA).

The EPA is proposing to approve updates to the Oklahoma SIP incorporation by reference provisions to maintain consistency with Federal requirements, which will apply statewide in Oklahoma. Consistent with the D.C. Circuit's decision in ODEQ v. EPA and with the EPA's October 1, 2020, SAFETEA approval, if this approval is finalized as proposed, these SIP revisions will apply to all Indian country within the State of Oklahoma, other than the excluded Indian country lands, as described above. Because—per the State's request under SAFETEA—EPA's October 1, 2020, approval does not displace any SIP authority previously exercised by the State under the CAA as interpreted in ODEQ v. EPA, the SIP will also apply to any Indian allotments or dependent Indian communities located outside of an Indian reservation over which there has been no demonstration of tribal authority. 3

We are proposing to approve under section 110 of the CAA, the December 17, 2021, and January 30, 2023, revisions to the Oklahoma SIP to update the incorporation by reference dates for Federal requirements. We have determined that these revisions were developed in accordance with the CAA and the EPA's regulations, policy, and guidance for SIP development.

The EPA proposes approval of the following revisions to the Oklahoma SIP adopted on June 11, 2021, effective September 15, 2021, and submitted to the EPA on December 17, 2021:

• Revisions to OAC 252:100-2-3, Incorporation by Reference,

• Repeal of OAC 252:100, Appendix Q, and

• Adoption of new OAC 252:100. Appendix Q.

The EPA proposes approval of the following revisions to the Oklahoma SIP adopted on June 21, 2022, effective September 15, 2022, and submitted to the EPA on January 30, 2023:

• Revisions to OAC 252:100-2-3, Incorporation by Reference,

• Repeal of OAC 252:100, Appendix Q, and

• Adoption of new OAC 252:100. Appendix Q.

The EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within Oklahoma. 4 The EPA then compared the data to the national average for each of the demographic groups. The results of this analysis are being provided for informational and transparency purposes. The results of the demographic analysis indicate that, for populations within Oklahoma, the percent people of color (persons who reported their race as a category other than White alone (not Hispanic or Latino)) is less than the national average (35 percent versus 40 percent). Within people of color, the percent of the population that is Black or African American alone is lower than the national average (7.8 percent versus 13.4 percent) and the percent of the population that is American Indian/Alaska Native is significantly higher than the national average (9.4 percent versus 1.3 percent). The percent of the population that is two or more races is higher than the national averages (6.3 percent versus 2.8 percent). The percent of persons in poverty in Oklahoma is higher than the national average (14.3 percent versus 11.4 percent). The percent of persons aged 25 years and older with a high school diploma in Oklahoma is similar to the national average (88.6 percent versus 88.5 percent), while the percent with a Bachelor's degree or higher is below the national average (26.1 percent versus 32.9 percent).

This action proposes to approve revisions to the Oklahoma SIP to update the incorporation by reference provisions to maintain consistency with Federal requirements; thus, enabling the State of Oklahoma to implement control strategies and permitting programs. We expect that this action, if finalized, will generally achieve emissions reductions and contribute to reduced environmental and health impacts on all populations in Oklahoma, including people of color and low-income populations. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.

In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to the Oklahoma regulations that update Oklahoma's incorporation by reference of certain Federal regulations in 40 CFR parts 50, 51, and 98 identified and discussed in Section II, The EPA's Evaluation, and Section IV, Proposed Action, of this preamble. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA performed an environmental justice analysis, as is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. In addition, there is no information in the record upon which this decision is based inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This proposed approval of revisions to the Oklahoma SIP that update the incorporation by reference dates for Federal requirements as discussed more fully elsewhere in this document will apply, if finalized as proposed, to certain areas of Indian country as discussed in the preamble, and therefore has tribal implications as specified in E.O. 13175 (65 FR 67249, November 9, 2000). However, this action will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. This action will not impose substantial direct compliance costs on federally recognized tribal governments because no actions will be required of tribal governments. This action will also not preempt tribal law as no Oklahoma tribe implements a regulatory program under the CAA, and thus does not have applicable or related tribal laws. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), the EPA has engaged with tribal governments that may be affected by this action and provided information about this action.

Does this action apply to me?

Entities potentially affected by this proposed rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel. Potentially affected categories include:

In support, the Petitioner states that the Station has a long history of severe reception problems as a result of its operation on a VHF channel, and that the Commission has recognized that VHF channels pose challenges for their use in providing digital television service, including propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances and result in large variability in the performance of indoor antennas available to viewers with most antennas performing very poorly on high VHF channels. According to the Petitioner, KCBY-TV has received numerous complaints from viewers unable to receive that Station's over-the-air signal, despite being able to receive signals from other local stations.” Petitioner asserts that its channel substitution proposal will serve the public interest by resolving the over-the-air reception problems and enhancing viewer reception in KCBY-TV's service area. An analysis provided by the Petitioner using the Commission's TVStudy software tool indicates that all but approximately 392 persons will continue to receive the signal, a number the Petitioner asserts is de minimis. Furthermore, in addition to maintaining full coverage of its community of license, Petitioner notes that the proposed change to channel 34 will result in a predicted increase in service to more than 11,000 persons.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 23-43; RM-11944; DA 23-92, adopted

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a Notice of Proposed Rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in Section 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

See Sections 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (2006 Consolidated HMS FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota, recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States, among the various domestic fishing categories per the allocations established in the 2006 Consolidated HMS FMP and its amendments. Section 635.23 specifies the retention limit provisions for Atlantic Tunas General category permitted vessels and HMS Charter/Headboat permitted vessels, including regarding RFDs.

RFDs are used as an effort control to ensure that BFT quotas and subquotas are not exceeded. As described in § 635.27(a), the current baseline U.S. quota is 1,316.14 metric tons (mt) (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). The baseline quota for the General category is 710.7 mt. Each of the General category time periods (January through March, June through August, September, October through November, and December) are allocated a portion of the annual General category quota.

NMFS first established the regulatory authority to set “no fishing” days in a 1995 rule (60 FR 38505, July 27, 1995) as an available effort control that could be used to extend the General category time period subquotas while providing additional inseason management flexibility with regard to quota use and season length. An RFD is a day, established ahead of time through a schedule published in the Federal Register , on which NMFS sets the BFT retention limit at zero for certain categories of permit holders. Specifically, on an RFD, vessels permitted in the Atlantic Tunas General category are prohibited from fishing for (including catch-and-release and tag-and-release fishing), possessing, retaining, landing, or selling BFT (§ 635.23(a)(2)). RFDs also apply to HMS Charter/Headboat permitted vessels to preclude fishing commercially under General category restrictions and retention limits on those days but do not preclude such vessels from recreational fishing activity under applicable Angling category regulations, including catch-and-release and tag-and-release fishing (§ 635.23(c)(2)).

NMFS may waive previously scheduled RFDs under certain circumstances. Consistent with § 635.23(a)(4), NMFS may waive an RFD by adjusting the daily BFT retention limit from zero up to five on specified RFDs after considering the inseason adjustment determination criteria at § 635.27(a)(7). Considerations include, among other things, review of dealer reports, daily landing trends, and the availability of BFT on fishing grounds. NMFS would announce any such waiver by filing a retention limit adjustment with the Office of the Federal Register for publication. Such adjustments would be effective no less than 3 calendar days after the date of filing for public inspection with the Office of the Federal Register. NMFS also may waive previously designated RFDs effective upon closure of the General category fishery so that persons aboard vessels permitted in the General category may conduct catch-and-release or tag-and-release fishing for BFT under § 635.26(a). NMFS would not modify the previously scheduled RFDs during the fishing year in other ways (such as changing an RFD from one date to another or adding RFDs).

Due to increased BFT landings rates in the General category in 2019 and 2020 and numerous requests from members of the Atlantic HMS Advisory Panel, General category participants, and Atlantic tunas dealers, NMFS resumed the use of RFDs in 2021 for the first time since 2007 (86 FR 25992, May 12, 2021; 86 FR 43421, August 9, 2021). In 2022, because the use of RFDs in 2021 succeeded in extending fishing opportunities through a greater portion of the relevant General category time periods and the fishing season overall, consistent with management objectives for the fishery, NMFS implemented RFDs on every Tuesday, Friday, and Saturday from July 1 through November 30 while the fishery was open (87 FR 12643, March 7, 2022; 87 FR 33056, June 1, 2022). Similar to the 2021 and 2022 rulemakings, NMFS is proposing an RFD schedule to extend fishing opportunities through a greater portion of the relevant General category time periods and the fishing season overall, consistent with management objectives for the fishery. Based on comments received on the 2022 rulemaking and on comments received throughout 2022, as described below, NMFS is also proposing to extend the use of RFDs to the December 2023 and January through March 2024 time periods.

In this proposed rule, NMFS proposes to schedule RFDs every Tuesday, Friday, and Saturday from July 1, 2023 through November 30, 2023 and every Tuesday and Friday from December 1, 2023 through March 31, 2024, while the fishery is open. On these designated RFDs, persons aboard vessels permitted in the General category would be prohibited from fishing for (including catch-and-release and tag-and-release fishing), possessing, retaining, landing, or selling BFT. Persons aboard HMS Charter/Headboat permitted vessels with a commercial sale endorsement also would be prohibited from fishing commercially for BFT. Persons aboard all HMS Charter/Headboat permitted vessels (including those with a commercial sale endorsement) could fish recreationally for BFT under the applicable Angling category restrictions and retention limits.

From July 1 through November 30, 2023, NMFS is proposing the same weekly schedule as the 2021 and 2022 RFD schedule ( i.e., every Tuesday, Friday, and Saturday). Unlike in 2021 and 2022, NMFS is also proposing to extend RFDs to the “winter” fishery ( i.e., the December and January through March time periods). Specifically, from December 1, 2023 through March 31, 2024, NMFS proposes two RFDs per week ( i.e., every Tuesday and Friday) while the fishery is open. This proposed schedule and extension is based on general feedback provided by members of the Atlantic HMS Advisory Panel, General category participants, and Atlantic tunas dealers in 2022; a review of average daily landings rate data for recent years; a review of past years' RFD schedules (including the most recent 2022 RFD schedule); and a review of past closure dates prior to RFDs being set in 2021. Considering that information, NMFS believes that a schedule of RFDs from July 2023 through March 2024 should continue to increase the likelihood of pacing General category landings to extend fishing opportunities through a greater portion of the General category time periods. In the July through November time periods, the schedule would allow for 2-consecutive 2-day periods each week (Sunday-Monday; Wednesday-Thursday) for BFT product to move through the market and allow for some commercial fishing activity each weekend (Sunday). In the December and January through March time periods it would allow for extended fishing opportunities while pacing the BFT landings over a greater portion of the General category time periods.

In 2022, NMFS received some comments suggesting an increase from 3 to 4 RFDs during the July through November time periods. Based on the landings data, if NMFS were to consider an additional day to the current schedule, Sunday would appear to be the best fit because it has the highest landings rates of the remaining days ( i.e., Sunday, Monday, Wednesday, and Thursday). In 2022 after the final RFD schedule published, NMFS received requests to establish a weekly schedule consisting of 3 RFDs in a row such as Thursday, Friday, and Saturday. These requests stated that a block of days would better assist the BFT product to move through the market, assist with enforcement, and assist the industry with 3 consecutive days off. NMFS is not proposing either requested schedule at this time because NMFS believes it would provide less flexibility for fishermen and could be disruptive to tournaments and businesses that are planning for 2023 based on what occurred in 2022. However, in this Federal Register proposed rule, NMFS requests public comments on:

• Whether July through November RFDs should be established for 4 days per week instead of 3, and if so, what the fourth day should be, and

• Whether July through November RFDs should be scheduled for 3 or 4 consecutive days and if that schedule would be less disruptive than the proposed schedule that allows for 2-consecutive 2-day periods each week (Sunday-Monday; Wednesday-Thursday) for BFT product to move through the market.

Additionally, in 2022, NMFS received requests from some winter fishery participants to extend RFDs into both the December and the January through March time periods. These dealers and General category participants suggested that establishing RFDs in these General category time periods would assist in facilitating entry of BFT product to the market while also allowing rest days for commercial BFT fishermen. Over the last 6 years, closure of the December time period has been necessary in 2017, 2020, 2021, and 2022, with the fishery remaining open through the end of the month in 2018 and 2019. Similarly, over the last 6 years, closure of the January through March time period has been necessary every year for 2017 through 2022. Based on these requests and to extend fishing opportunities throughout the December and January through March time periods, NMFS proposes RFDs for the December 2023 and the January through March 2024 time periods. NMFS is proposing only Tuesday and Friday as RFDs for these time periods because these days have the highest landings rates and because of concerns that 3 or more days per week may be too restrictive given the potential for inclement winter weather. In this proposed rule, NMFS specifically requests public comment on how many RFDs per week would be appropriate during these time periods and which days may be most beneficial.

Under existing regulations, based on consideration of regulatory criteria at § 635.27(a)(7), NMFS may waive certain RFDs consistent with § 635.23(a)(4), either by adjusting the retention limit upwards on a previously-scheduled RFD or by waiving an RFD to allow recreational fishing under the Angling category restrictions and retention limits when the General category closes. Once the schedule is set, however, NMFS would not modify RFDs in other ways ( e.g., switching days or adding RFDs).

NMFS is proposing a schedule of RFDs for every Tuesday, Friday, and Saturday from July 1, 2023, through November 30, 2023. Additionally, NMFS is proposing a schedule of RFDs for every Tuesday and Friday from December 1, 2023 through March 31, 2024. NMFS is requesting comments on this proposed RFD schedule. NMFS is also specifically requesting comments on: (1) whether July through November RFDs should be 4 days per week instead of 3, and if so, what the fourth day should be; (2) whether July through November RFDs should be scheduled for 3 or 4 consecutive days and if that schedule would be less disruptive than the proposed schedule that allows for 2-consecutive 2-day periods each week (Sunday-Monday; Wednesday-Thursday) for BFT product to move through the market; and (3) whether the December through March RFD 2 day per week schedule is appropriate and which days would be the most beneficial for these time periods. Comments on this proposed rule may be submitted via https://www.regulations.gov or at a public conference call and webinar. NMFS solicits comments on this action by April 5, 2023 (see DATES and ADDRESSES ).

During the comment period, NMFS will hold a public hearing via conference call and webinar for this proposed action. Requests for sign language interpretation or other auxiliary aids should be directed to Erianna Hammond at Erianna.hammond@noaa.gov or 301-427-8503, at least 7 days prior to the meeting.

The conference call and webinar will take place on March 23, 2023 from 2:00 to 4:00 p.m. Information for registering and accessing the webinars can be found at https://www.fisheries.noaa.gov/action/proposed-restricted-fishing-days-atlantic-bluefin-tuna-fishery-parts-2023-and-2024.

The public is reminded that NMFS expects participants at conference calls and webinars to conduct themselves appropriately. At the beginning of each conference call and webinar, the moderator will explain how the conference call and webinar will be conducted and how and when participants can provide comments. NMFS representative(s) will structure the conference call and webinar so that all members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Participants are expected to respect the ground rules, and those that do not may be asked to leave the conference calls and webinars.

The NMFS Assistant Administrator has determined that this proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, ATCA, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble.

Section 603(b)(1) of the RFA requires agencies to describe the reasons why the action is being considered. The purpose of this proposed rulemaking is, consistent with the objectives of the 2006 Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act, ATCA, and other applicable law, to potentially set a schedule of BFT RFDs for parts of the 2023 and 2024 fishing years as an effort control for the General category quota and to extend General category fishing opportunities through a greater portion of the General category time period subquotas. Implementation of the proposal would further the management goals and objectives in the 2006 Consolidated HMS FMP and its amendments.

Section 603(b)(2) of the RFA requires agencies to state the objectives of, and legal basis for, the proposed action. The objective of this proposed rulemaking is to set a schedule of BFT RFDs for parts of the 2023 and 2024 fishing year to increase the likelihood of pacing General category landings to extend fishing opportunities through a greater portion of the General category time periods (similar to the 2022 RFD schedule). The legal basis for the proposed rule is the Magnuson-Stevens Act and ATCA.

Section 603(b)(3) of the RFA requires agencies to provide an estimate of the number of small entities to which the rule would apply. NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes. The Small Business Administration (SBA) has established size standards for all other major industry sectors in the United States, including the scenic and sightseeing transportation (water) sector (NAICS code 487210), which includes for-hire (charter/party boat) fishing entities. The SBA has defined a small entity under the scenic and sightseeing transportation (water) sector as one with average annual receipts (revenue) of less than $14.0 million. NMFS considers all HMS permit holders, both commercial and for-hire, to be small entities because they had average annual receipts of less than their respective sector's standard of $11 million and $8 million. The 2021 total ex-vessel annual revenue for the BFT fishery was $11.8 million. Since a small business is defined as having annual receipts not in excess of $11.0 million, each individual BFT permit holder would fall within the small entity definition. The numbers of relevant annual Atlantic Tunas or Atlantic HMS permits as of October 2022 are as follows: 2,630 General category permit holders and 4,175 HMS Charter/Headboat permit holders, of which 1,873 hold HMS Charter/Headboat permits with a commercial sale endorsement.

Section 603(b)(4) of the RFA requires agencies to describe any new reporting, record-keeping, and other compliance requirements. This proposed rule does not contain any new collection of information, reporting, or record-keeping requirements. This proposed rule would set a schedule of RFDs for parts of 2023 and 2024 as an effort control for the General category.

Under section 603(b)(5) of the RFA, agencies must identify, to the extent practicable, relevant Federal rules which duplicate, overlap, or conflict with the proposed action. Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other fishery management measures. These include, but are not limited to, the Magnuson-Stevens Act, ATCA, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. This proposed action has been determined not to duplicate, overlap, or conflict with any Federal rules.

Under section 603(c) of the RFA, agencies must describe any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. Specifically, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of significant alternatives to assist an agency in the development of significant alternatives. These categories of alternatives are: (1) establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule, or any part thereof, for small entities.

Regarding the first, second, and fourth categories, NMFS cannot establish differing compliance or reporting requirements for small entities or exempt small entities from coverage of the rule or parts of it, because all of the businesses impacted by this rule are considered small entities, and thus the requirements are already designed for small entities. Regarding the third category, NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking.

This proposed rule would not change the U.S. BFT quotas or implement any new management measures not previously considered under the 2006 Consolidated HMS FMP and its amendments. NMFS proposes continuation of the use of RFDs for the General category for parts of 2023 and 2024 to provide the regulated community the opportunity to comment on the proposed RFD schedule. Under the regulations, when a General category time period subquota is reached or projected to be reached, NMFS closes the General category fishery. Retaining, possessing, or landing BFT under that quota category is prohibited on and after the effective date and time of a closure notice for that category, for the remainder of the fishing year, until the opening of the subsequent time period or until such date as specified. In recent years, these closures, if needed, have generally occurred toward the end of a time period. NMFS notes that market-based factors may affect the length of time before any particular time period closes, but believes that RFDs are still needed to provide a pre-scheduled, consistent approach across the fishery. According to communications with dealers and fishermen, several of the high-volume Atlantic tunas dealers in 2019, 2020, and 2022 were limiting their purchases of BFT and buying no or very few BFT (such as harpooned fish only) on certain days during the beginning portion of the June through August time period in order to extend the available quota until later in the time period given market considerations. While these actions may have lengthened the time before any particular time period was closed, there were negative impacts experienced by some General category and Charter/Headboat permitted fishermen, who could not find buyers for their BFT. In 2021, NMFS set pre-scheduled RFDs for the General category fishery on certain days (Tuesdays, Fridays, and Saturdays) from September through November to increase the likelihood of pacing General category landings to extend fishing opportunities through a greater portion of the General category time periods (August 9, 2021, 86 FR 43421). In 2022, NMFS set pre-scheduled RFDs for the same days from July through November (June 1, 2022, 87 FR 33056).

Table 1 shows the General category closure dates by time period for 2018 through 2022. The General category remained open for the entire duration of the June through August time period in 2018 and 2020, and of the December time period in 2018 and 2019. The October through November time period tends to close the earliest of any time period, and NMFS often receives requests to reopen that time period. Following the consideration of numerous factors ( i.e., daily landings rates, weather conditions, available quota, etc. ), NMFS reopened the October through November time period in 2018 and 2020. In 2021, NMFS set RFDs for the September through November time periods, resulting in the General category fishing extending late into September and through the end of October through November time period. In 2022, NMFS set RFDs for the June through November time periods, with the first RFD established on July 1. Closure dates for 2022 were February 11, August 10, September 19, October 24, and December 10, respectively, for each time period. NMFS believes that the relatively early closure dates in 2022 were due in part to high daily landings rates when the time periods were open in the summer and fall. Based on a review of average daily landings rates, without the use of RFDs, NMFS likely would have needed to close the June through November time periods much earlier if the RFDs were not in place. These high landings rates continued into December 2022, resulting in that time period closing after 10 days, much earlier than in 2018 through 2021. The use of RFDs in 2022 from June through November paced the landings as much as possible and extended the fishing opportunities for the June through November time periods. The current proposal to extend RFDs into December of 2023 and January through March of 2024 should similarly increase fishing opportunities throughout all time periods.

Table 2 shows the average ex-vessel price per pound of BFT during each General category time period for 2018 through 2022 adjusted to real 2022 dollars using the Gross Domestic Product (GDP) deflator. Ex-vessel price per pound was lower for the September time period, with an average (2018 through 2022) of $6.65, and varied over the summer and fall period, with averages of $6.97 for the June through August time period and $7.03 for the October through November time period. In 2022, the average price per pound was higher for the January through March time period compared to the average price per pound during the time periods in 2021. In most time periods, the 2022 average price per pound was also higher than the 2020 average price per pound. NMFS believes that this increase in average price was in part due to the use of RFDs in 2022.

Table 3 shows the number and total weight of BFT that were landed but not sold by fishermen fishing under the General category quota for 2018 through 2022. The number and weight of unsold BFT increased from 2018 through 2022 with a peak in 2020 (143 BFT and 25.8 mt) in part due to the COVID-19 pandemic, and substantial decrease in 2021 (from 143 to 12 BFT and 25.8 mt to 2.0 mt), followed by an increase in 2022 (48 BFT and 9.1 mt). NMFS believes this increase is in part due to an influx of domestically caught BFT entering the market at one time resulting in dealers limiting their purchases of BFT leading to General category participants. This situation resulted in unprecedented high landings days in several time periods and BFT fishermen having a difficult time finding buyers for landed BFT.

NMFS is proposing to establish a schedule of RFDs for parts of the 2023 and 2024 fishing years that would specify days on which fishing and sales will not occur. Specifically, for the 3 time periods from June through November, the proposed schedule allows for 2-consecutive 2-day periods each week for BFT product to move through the market while also allowing some commercial fishing activity to occur each weekend ( i.e., Sundays). For the December and January through March time periods, the proposed schedule would allow for extended fishing opportunity while pacing the BFT landings over a span of time. Because this schedule of RFDs would apply to all participants equally, NMFS anticipates that this schedule would extend fishing opportunities through a greater proportion of the time periods in which they apply by spreading fishing effort out over time similar to the 2022 fishing season. Further, to the extent that the ex-vessel revenue for a BFT sold by a General or HMS Charter/Headboat permitted vessel (with a commercial endorsement) may be higher when a lower volume of domestically caught BFT is on the market at one time, the use of RFDs may result in some increase in BFT price, and the value of the General category time period subquotas could increase similar to that of 2022. Thus, although NMFS anticipates that the same overall amount of the General category quota would be landed as well as the same amount of BFT landed per vessel, there may be some positive impacts to the General category and Charter/Headboat (commercial) BFT fishery small businesses. Using RFDs may more equitably distribute fishing opportunities across all permitted vessels for longer durations within each General category time period.

If NMFS does not implement a schedule, without any other changes, it is possible that the General category could have fewer open days later in the fishing season when ex-vessel prices tend to be higher (Table 1) as observed in 2018 through 2022. Additionally, without RFDs the trends of increasing numbers of unsold BFT (Table 3) and decreasing ex-vessel prices (Table 2) from 2018 through 2020 could continue. If those trends were to continue, all active General category permit holders could experience negative economic impacts similar to 2019, 2020, and 2022 where dealers were limiting their purchases of BFT and buying no or very few BFT on certain days in order to extend the available quota.

This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.